Vikrama Das Mahant vs Daulat Ram Asthana and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (civil) 149 of 1951

Decision Date: 15 February, 1956

Coram: V. Bose, B. Jagannadhadas, B.P. Sinha, S.J. Imam, N.C. AIYAR

In the matter of Vikrama Das Mahant versus Daulat Ram Asthana and others, the Supreme Court delivered its judgment on 15 February 1956. The appeal, recorded as Civil Appeal 149 of 1951, was presented by the petitioner, Vikrama Das Mahant, against the respondents, Daulat Ram Asthana and others. The bench that heard the appeal comprised Justices V. Bose, B. Jagannadhadas, B. P. Sinha, S. J. Imam, and N. C. Aiyar. The decision is reported in the 1956 volume of the All India Reporter (AIR (SC) 382) and was delivered by Justice Jagannadhadas.

The appeal challenged the judgment and decree of the Allahabad High Court dated 22 February 1949, which had been affirmed on a certificate issued under Article 133(1)(a) of the Constitution. The dispute originated from a civil suit concerning an ancient Thakurdwara situated in the village of Amaulipur. This temple, known as Amaulipur Asthan, houses shrines to Sri Hanuman Ji and Sri Thakurji and is collectively referred to as “the Asthan.” The Asthan possessed extensive lands that were listed in the plaint as Lists A, B, and C. The revenue generated from these lands was devoted entirely to the offering of food to the deities and to maintaining a perpetual alms-distribution system for ascetics and faqirs. The Asthan had been the subject of continuous litigation since approximately 1926, a background that the Court found essential for a proper understanding of the matters before it.

The earliest relevant episode involved the death of Ganpat Das, the former Mahant of the Asthan, in 1920. His successor was Mahant Bharat Das, who was alive at the time of the proceedings but, according to the plaintiff’s allegations, had become mentally deranged. On 11 May 1925, Bharat Das is said to have executed a power of attorney in favour of Gomti Das. Approximately a year later, on 10 July 1926, Bharat Das purportedly executed another instrument that purported to transfer his Mahantship to the present first defendant-appellant, Vikrama Das. In response, Gomti Das instituted suit No. 27 of 1927 against Vikrama Das, seeking two declarations: first, that the deed dated 10 July 1926 was null and void; and second, that Gomti Das himself was the rightful Mahant of the Asthan, thereby entitled to possession and occupation of the Asthan and its properties. The trial court ruled in favour of Gomti Das, granting both of his reliefs. Upon appeal, the Allahabad High Court modified the decree by setting aside the declaration that named Gomti Das as Mahant, while upholding the finding that the deed of 10 July 1926 was null and void insofar as it affected the Asthan. Unsatisfied with this outcome, the first defendant, Vikrama Das, appealed to the Privy Council. The Privy Council, noting that the plaintiff had failed to establish his title as Mahant before the High Court, concluded that the plaintiff was not entitled to a declaration that the deed of 10 July 1926 was null and void against the Asthan, and consequently dismissed the suit in its entirety. The Privy Council’s decision was pronounced on 25 October 1935 and is recorded in Mahant Bikrama Das v. Gomti Das, 1935 ALL RW 1408 (PC).

In that appeal the Privy Council held that the plaintiff was not entitled to obtain a declaration that the deed dated 10-7-1926 was null and void as against the Asthan. Accordingly, the suit was dismissed in its entirety. The judgment of the Privy Council was pronounced on 25-10-1935. While a certified copy of that judgment was not placed on the record in the present proceedings, it is available in the reported case Mahant Bikrama Das v. Gomati Das 1935 ALLWR 1408 (PC) (A). During the period when the appeal was pending before the Privy Council, three individuals—Bansi Das, Raghubir Das and Ram Sarup Das—applied to the District Collector for permission, under Section 92 read with Section 93 of the Civil Procedure Code, to commence a civil suit concerning the Asthan for the removal of Mahant Bharat Das. The Collector granted this permission by order dated 18-11-1933. Pursuant to that order, a suit under Section 92 was filed on 27-11-1933, recorded as suit No. 90 of 1933 before the Subordinate Judge of Basti. The plaint sought three principal reliefs: first, a decree directing the removal of the then-incumbent Mahant Bharat Das and the appointment of his alleged disciple Ram Sarup Das as Mahant; second, the constitution of a committee of seven named persons to carry out the objects of the waqf; and third, the entrustment of the trust’s properties to Ram Sarup Das and the committee for management and the preparation of a scheme. It should be noted that the suit was instituted by only two of the three persons who had obtained the Collector’s sanction—namely Bansi Das and Raghubir Das—while the third, Ram Sarup Das, whose appointment as Mahant was part of the prayer, was not a party to the suit. The sole defendant was Mahant Bharat Das, described in the plaint as “Mahant Bharat Das insane under the guardianship of Devi Prasad Singh.” On 30-1-1934 Devi Prasad Singh filed a written statement on behalf of Mahant Bharat Das contesting the suit.

A compromise was reached shortly thereafter, and a petition of compromise was filed on 3-4-1934. The terms of the compromise required that the reliefs pleaded by the plaintiffs be decreed, including the appointment of Ram Sarup Das as Mahant, on the condition that the Asthan would be responsible for maintaining the defendant, Mahant Bharat Das, for the remainder of his life, and that Ram Sarup Das would be liable to maintain him from the income of the trust property. A decree reflecting the terms of the compromise was passed on the same date. It is important to observe that this compromise and the resulting decree were issued well before the Privy Council delivered its judgment, which was rendered about one and a half years later on 25-10-1935. According to the plaint in the present suit, Mahant Bharat Das was removed from his position as Mahant as a result of the aforementioned compromise.

After the decree, Ram Sarup Das took charge of managing the Asthan and its properties together with the trustees who had been appointed under that decree, and the Revenue Court entered his name in the official registers for all villages that formed part of the Asthan. Subsequent to the defeat of the suit brought by Gomati Das against the present defendant Vikrama Das in the Privy Council, Vikrama Das applied to the Revenue Court for the rectification of the Khewats that related to the Asthan’s properties. By the time the present plaint was instituted, the Khewat had been altered in the name of the first defendant only with respect to the properties listed in List C, while applications for similar rectification of other properties remained pending. The suit was therefore instituted to obtain a declaration that the plaintiffs together with the second defendant were the trustees of the Asthan and of the properties described in Lists A, B and C, properties with which the first defendant Vikrama Das claimed no interest, and also to seek possession of those properties in the event that the first defendant was deemed to be in possession of them by virtue of a mutation of his name in the revenue records. The plaint was filed by four individuals. Three of them—Daulat Ram Asthana, Raja Ram Pandey and Ram Prasad Singh—had been appointed as trustees under the compromise decree in suit No. 90 of 1933, and the fourth plaintiff, Baba Bansi Das, was impleaded so that, alternatively, a decree for possession could be granted in his favour on the basis that he was the successor to Mahant Bharat Das. The first defendant in the present suit was Vikrama Das, who had previously been the defendant in the litigation that reached the Privy Council; the third defendant was Mahant Bharat Das, described in the plaint as “insane under the guardianship of Devi Prasad Singh”. The second defendant, Pandit Chandra Sekhar Pandey, was one of the seven persons named as trustees in the compromise decree of suit No. 90 of 1933. The first defendant was the only party to contest the suit. He advanced several pleas which can be summarised as follows: first, that the plaintiffs lacked any right to maintain the suit because the decree from which they derived their claim to trusteeship was invalid and collusive and the first defendant had not been a party to it; second, that the disputed property was not waqf property, having never been constituted as a waqf for any Asthan or any idol, and that Bharat Das was the owner of the property and not a trustee; third, that the contesting defendant was the nearest related Nihang Sanyasi belonging to the spiritual family of Bharat Das and had been duly appointed Mahanta in accordance with custom after the deed dated 10-7-1926 was executed; fifth, that various issues were framed and a decree was granted in favour.

On 13-2-1943 a decree was passed against the plaintiffs. The first defendant, Vikrama Das, appealed against that decree to the High Court. The High Court dismissed the appeal by a judgment and decree dated 22-2-1949, and the present appeal before the Supreme Court was filed by the same first defendant. At this point it became necessary to record several changes that had occurred in the composition of the parties during the course of the proceedings. The fourth plaintiff, Baba Bansi Das, filed an application in the trial Court on 11-11-1942 requesting that his name be removed from the list of plaintiffs; the trial Court ordered his removal. The second plaintiff, Raja Ram Pandey, died while the appeal was pending before the High Court, and the appeal was thereafter continued against the remaining two plaintiffs as respondents. The first and third plaintiffs, Daulat Ram Asthana and Ram Prasad Singh, died after the High Court had granted leave to appeal to this Court; Daulat Ram Asthana died on 2-2-1951 and Ram Prasad Singh died on 19-2-1952. On 3-9-1953 the appellant filed another application in the High Court, after two earlier unsuccessful applications, praying that the second defendant, Chandrasekhara Pandey, be treated as the trustee against whom the present appeal could be continued in place of the three deceased plaintiffs. The same application also alleged that two other persons, Ram Sarup Das and Shyam Narayan Pandey, were intermeddling with the trust estate and therefore should be impleaded. The High Court directed the lower Court to prepare a report. The Civil Judge reported that Chandrasekhara Pandey had appeared and disclaimed any interest, that Shyam Narayan Pandey had not appeared despite personal service, and that Ram Sarup Das was indeed intermeddling with the trust estate. When the report was placed before the High Court, the appellant prayed that the names of the deceased plaintiffs, Daulat Ram Asthana and Ram Prasad Singh, be removed from the record and that the name of Ram Sarup Das, who had been found to be intermeddling, be substituted as the respondent against whom the appeal should continue. This prayer was opposed on behalf of Ram Sarup Das, but the High Court ordered that his name be entered on the record because he claimed to be intermeddling with the trust estate. The Supreme Court affirmed this order in its chambers order dated 5-5-1955, and consequently Ram Sarup Das became the sole respondent before this Court. At the hearing of the appeal, counsel for Ram Sarup Das raised a preliminary objection that he had been incorrectly brought on record as a legal representative. However, he did not deny that Ram Sarup Das possessed an interest in the trust estate or that he was in possession of it. Instead, he asserted that he was in possession and maintained his title to the Mahantship by virtue

The Court observed that the preliminary objection raised by the counsel for Ram Sarup Das could not be sustained because he had asserted possession of the Mahantship and relied on the compromise decree to claim title. Accordingly, the Court held that the appeal must continue against Ram Sarup Das in the manner ordered by the High Court and affirmed by this Court on 5 May 1955, and that order therefore remained effective.

At the trial of the suit, several issues were framed, of which the most significant were the following. The first issue questioned whether the Asthan and its associated lands were waqf property held in a public trust for religious and charitable purposes or whether they constituted the personal property of the Mahant of the Asthan. After a detailed examination, the trial court concluded that the Asthan and the appurtenant properties were undeniably waqf and thus subject to a public religious-charitable trust, not the Mahant’s personal assets. The next pivotal issue, identified as Issue 6, asked whether Ram Sarup Das was the lawful Mahant of the Asthan and whether the plaintiffs could obtain a declaration of his Mahantship without impleading him as a party. The plaintiffs had alleged that Ram Sarup Das had been initiated as a Chela by Bharat Das and therefore succeeded lawfully. The Court noted, however, that irrespective of that allegation, Ram Sarup Das became Mahant by virtue of the compromise decree, entered possession of the Asthan property after the decree, and his name was entered in the revenue records until it was removed in 1940 by the Board of Revenue. Consequently, the Court held that the plaintiffs were fully entitled to seek a declaration of Ram Sarup Das’s Mahantship, as the trustees and the Mahant were joined by the common purpose of managing the Asthan, and there was no necessity to implead him. Moreover, the defendant could not object to the omission because there was no privity of contract or title relationship between the defendant and Ram Sarup Das.

The subsequent important matters were Issues 4 and 5. Issue 4 addressed whether Amaulipur was a subordinate branch of Hanuman Garhi and what rule governed succession to the Mahantship of the Amaulipur Asthan. Issue 5 examined whether the defendant was the lawful successor-in-interest of Bharat Das and thus entitled to hold the property. Before discussing the findings on these two issues, it was necessary to note that the first defendant based his claim to the Mahantship on two grounds: first, that the Amaulipur Asthan was a subordinate branch of Hanuman Garhi, and that, by custom, the defendant—identified as the Mahant of Jhundi Jamaat in Patti Ujjainiya of Hanuman Garhi—was entitled to succeed to Amaulipur; and second, that a document dated 10 July 1926, executed by Bharat Das, transferred the Mahantship to him. The trial court, after considering both grounds, found no justification for linking the Amaulipur Asthan with Hanuman Garhi and observed that no customary right had been established for a Sadhu of Hanuman Garhi to succeed to the Amaulipur Gaddi. The Court further held that the defendant was neither a Chela of Bharat Das nor of Bharat Das’s Guru, and that succession to the Mahantship of Amaulipur had traditionally followed the line of senior Chela, making Bikrama Das the prospective Mahant after Bharat Das, not the defendant.

The first defendant, Vikrama Das, based his claim to the Mahantship on two premises. First, he argued that the Amaulipur Asthan was a subordinate branch of Hanuman Garhi and that, by custom, the successor to his Guru Mahabir Das, whose spiritual family included the Garhi of Mahant Bharat Das, was entitled to succeed to the Amaulipur Garhi, presumably because Bharat Das had become incompetent. Second, he relied on a document dated 10-7-1926, executed by Bharat Das, which purported to transfer the Mahantship to him. The trial court examined both premises and extracted several conclusions from its judgment. The court held that there was no warrant for connecting the Amaulipur Asthan with Hanuman Garhi and that no custom establishing a right for a Sadhu of Hanuman Garhi to succeed to the Amaulipur Gaddi had been proven. It further observed that the defendant was neither a Chela of Bharat Das nor of Bharat Das’s Guru, and that succession to the Mahantship of Amaulipur had always followed the line of the senior Chela, making Bikrama Das the only prospective Mahant after Bharat Das. The defendant had argued before the Court that the office of Mahant could be transferred only to the prospective Mahant; however, since the Court had found that Bikrama Das could not be the prospective Mahant, any transfer of the Mahantship to the defendant would be illegal under his own theory. After noting the Privy Council’s judgment and that the document of 10-7-1926 relied upon by Vikrama Das appeared to have been cancelled by another document executed by Bharat Das on 29-10-1926, the trial judge concluded that the Mahantship did not pass to the defendant, that he possessed no right or title to the Asthan or its properties, and that, as a trespasser, he was not entitled to retain or meddle with the Asthan’s affairs.

A further contested matter, designated as Issue No. 3, concerned the effect of the decree issued in Section 92 suit No. 90 of 1933. The questions posed were whether the decree entitled the plaintiff to sue, whether the defendant could challenge it, and whether the decree was a nullity for reasons set out in the written statement. Paragraph 12 of the written statement listed six heads of argument; the first four are reproduced below. (A) The suit was alleged to be entirely collusive. (B) It was contended that Bharat Das was not an insane person, and even if the plaintiffs’ false allegation of insanity were presumed, no proper and impartial guardian had been appointed; the nominated guardian, Devi Prasad of Udipur, was a close relative of Ram Prasad Singh of Udipur, one of the trustees, and was said to be in collusion with the plaintiffs, who were described as arbitrary trustees in the suit. (C) It was asserted that the contesting defendant was not a party to suit No. 90 of 1933. (D) It was argued that the proceedings in suit No. 90 of 1933 were taken during the pendency of suit No. 27 of 1927 and therefore were invalid and void under law and equity, as well as under section 52 of the Transfer of Property Act. The trial judge’s findings on these points emphasized the multiple irregularities present in the suit.

The written statement asserted that the proceedings in suit No 90 of 1933 were conducted while suit No 27 of 1927 was still pending, and therefore, according to law and justice and also under section 52 of the Transfer of Property Act, those proceedings were invalid and void. It further claimed that the suit fell outside the scope of section 92 of the Civil Procedure Code and that the necessary proceedings under section 4 had not been taken. The statement also alleged that the compromise in that suit was obtained by deceiving the Court and by concealing the true facts. At trial, an additional objection was raised to the validity of the decree on the ground that the suit leading to the decree had been instituted by only two of the three persons who had obtained the Collector’s sanction, and consequently both the institution of the suit and the ensuing decree were claimed to be invalid. The learned Judge addressed this objection by observing that, although there were several irregularities in the suit, the decree in question had been passed by a competent court possessing jurisdiction to try the suit, and the suit itself had been instituted with the Collector’s sanction. He further held that the decree remained perfectly valid so long as it was not set aside by a competent court on an application by Bharat Das, and therefore the decree was operative even against Bharat Das himself.

The judgment went on to state that the decree conferred upon the present plaintiffs the right to possess the Asthan and its properties and to manage them. It noted that this right had been violated concerning certain properties by an adverse order of the Revenue Courts and that, with respect to other properties, the right was in jeopardy at the date of the suit because of pending mutation applications filed by the defendant. Nevertheless, the plaintiffs, by virtue of the decree, possessed the right to institute the present suit. The Court explained that the defendant could escape the operation of the decree in suit No 90 of 1933 only if he succeeded in establishing a legal title to the Asthan and its property that the Court could recognize. Consequently, it was necessary to determine the defendant’s rights in relation to the Asthan and its property.

Several other minor issues were also considered, the majority of which were decided in favour of the plaintiffs. Of particular relevance were issues numbered 8, 11 and 12. Issue 8 concerned whether the plaintiffs alone were competent to sue. The Court found no merit in the plea, observing that the only surviving trustees were the plaintiffs and the second defendant, Chandra Sekhara, the remaining trustees appointed by the decree having died. Issue 11 related to the limitation period, and Issue 12 concerned the applicability of section 42 of the Specific Relief Act; both of these issues were addressed in the same context but their detailed findings are set out elsewhere.

The Court observed that the only surviving trustees were the plaintiffs together with the second defendant, Chandra Sekhara, because all others who had been appointed by the decree under section 92 of the suit had died. Consequently, the Court found no merit in the plea that the plaintiffs were not competent to sue.

Regarding the contention that the suit was barred by limitation, the Court explained that the defendant’s argument relied on the alleged need to cancel a deed dated 10-7-1926. The Court held that it was not necessary for the plaintiffs to obtain cancellation of that deed as a prerequisite to enforcing their rights as trustees; they could simply disregard the deed. The burden of proving the deed’s validity lay on the defendant. The cause of action for the present suit arose from an order of the Board of Revenue directing a mutation in favour of Bikrama Das, and the suit sought to set aside that Revenue Court order by obtaining a decree from a Civil Court, which is the proper remedy for correcting mistakes in mutation. The Court therefore concluded that the suit had been instituted well within the prescribed time and was not time-barred.

On the question of whether section 42 of the Specific Relief Act barred the suit, the Court noted that the plaintiffs sought only a declaration concerning the properties and not possession. The defendant was not in actual possession of the properties in dispute; his attempts to establish possession by producing a few unscrupulous tenants were rejected as untenable, and the evidence overwhelmingly supported the plaintiffs’ possession. The only properties that had been mutated in the defendant’s name before the suit were those listed in Schedule C, and the plaintiffs had sought possession of those properties. The Court held that it was sufficient for the plaintiffs to obtain a declaration regarding the properties that were recorded in the name of Ramsarup Das at the time the suit was filed. A later acquisition of possession by the defendant could not revive the defence under section 42. Accordingly, the trial Court decreed in favour of the plaintiffs, declaring that the plaintiffs and the second defendant were the trustees of the Amaulipur Asthan and the properties listed in Schedules A, B and C, that they were the managers of those properties by right, and that the defendants had no claim over them. The decree also ordered the recovery of possession in favour of the plaintiffs as trustees and Mahant Ram Sarup Das as the Mahant of the Amaulipur Asthan over the properties enumerated in Schedule C.

The High Court, in the judgment summarized in the order granting the certificate, articulated three principal conclusions: first, that the decree in suit number 90 of 1933 was defective; second, that the plaintiffs did not qualify as de facto trustees; and third, that a valid assignment from Bharat Das to the appellant had been effected. The Court then proceeded to examine the specific findings made by the High Court on the various issues raised. Regarding issues numbered 1 and 12, the learned judges observed, and quoted verbatim, that “Learned counsel for the appellant has not, in his able argument, challenged the finding of the court below that the Asthan and the property in dispute constituted a trust, that they were not the personal and private property of Bharat Das and that the plaintiffs are, and the appellant is not, in actual possession thereof.” Concerning the title of the defendant as framed in issues 4 and 5, the judges recorded their findings, again quoted, stating, “In view of the findings arrived by the learned Civil Judge and which as we have seen, have not been challenged before us, the Asthan and the property in dispute were not the personal and private property of Bharat Das and he could not make a valid assignment thereof in favour of the appellant, who according to his finding, cannot be regarded as his rightful successor. In other words, the appellant, who is also, according to the finding of the learned Civil Judge, not in possession of the property in dispute, must be regarded as mere trespasser.” The court noted that it had not rendered a positive finding on issue 6, which pertained to the title of Ram Sarup Das, but that it appeared to uphold the trial-court decree, a decree that implicitly contained a finding on that point. The principal dispute before the High Court centred on the trial-court finding concerning issue 3. Aligning with the trial-court’s view, the High Court held that despite certain irregularities, the decree was not null; rather, such a decree was only voidable at the instance of the persons whom it was intended to bind and who were actual parties to the decree. Consequently, the appellant, characterized as a mere trespasser, possessed no right to set aside the decree. Finally, addressing the contention that the earlier suit and decree under Section 92 were collusive, the learned judges expressed their opinion, stating, “We are not satisfied that there was any collusion or dishonesty on the part of the plaintiffs in their suit under S. 92 of the Code of Civil Procedure. The circumstances had in fact made the institution of such a suit imperative and there is nothing to show that the plaintiffs were actuated by anything but the best of motives in instituting that suit and obtaining the orders of the court for the proper management of the trust property. We are, therefore,” thereby concluding that the plaintiffs acted in good faith.

The High Court expressed the view that the plaintiffs, by virtue of the decree issued in suit No. 90 of 1933, were entitled to maintain the present suit. Regarding the issue of de facto trusteeship and the right to institute the suit on that basis, the Court observed that even if the decree in suit No. 90 of 1933 were held not to give the plaintiffs authority to commence the present proceedings, there was nevertheless no doubt that, as de facto trustees, they possessed the right to maintain the action. The appellant argued that the doctrine of de facto trusteeship could not be applied because the plaintiffs’ possession of the trust property was not clear and undisputed. It was contended that the plaintiffs had obtained a favourable decree and had taken possession of the trust by “stealing a march” upon the appellant, who at that time was prosecuting an appeal before the Privy Council, and that such possession could not be characterised as honest. After considering the circumstances in which the plaintiffs had instituted a suit under Section 92 of the Civil Procedure Code, the Court found the appellant’s counsel’s contention to be untenable. The Court noted that nothing demonstrated that the plaintiffs’ possession of the trust property, since the decree of 1934, had ever been anything but clear and undisputed. It was acknowledged that, following the Privy Council’s decision in 1935, the appellant attempted to obtain mutation of titles in respect of some trust property in his favour; however, the Court held that this attempt did not affect the nature of the plaintiffs’ possession. The appellant possessed no title to the property and was not in actual possession of any portion thereof. Even assuming that the appellant had been in possession, such possession would have been that of a trespasser, and the plaintiffs, as de facto trustees, were clearly entitled to maintain the suit against him.

The High Court therefore concluded that the plaintiffs had a right to maintain the suit on two separate grounds. First, the decree in suit No. 90 of 1933 remained valid until it might be set aside. Second, irrespective of the decree, the plaintiffs were de facto trustees who enjoyed clear and undisputed possession of the trust and its properties, thereby giving them authority to sue. The Court further noted that, during the proceedings before the High Court, a point was raised concerning the trial court’s judgment that the defendant had no title under the document dated 10-7-1926. It was argued that this judgment effectively amounted to cancellation of that document and that the trial court, given the nature of the suit, lacked competence to grant such relief. The Court observed that the original plaint had sought a declaration that the appellant had acquired no rights in the trust property by virtue of the said document, a relief that was later withdrawn by amendment. Consequently, the High Court found that the plaintiffs’ case, which contended that Bharat Das, as a mere trustee, had no authority to execute the document in favour of the appellant and that the document therefore had no effect, rendered the request for cancellation unnecessary, and the Court decided the matter in favour of the plaintiffs.

The Court noted that the appellant had initially claimed that he acquired no rights in the suit property by virtue of the documents, but that claim had been withdrawn by a later amendment. The High Court observed that the plaintiffs argued that Bharat Das, acting only as a trustee, possessed no authority to execute the document in favor of the appellant; consequently, the document was ineffective and the plaintiffs need not seek its cancellation. The High Court accepted this argument, finding it favorable to the plaintiffs, and consequently affirmed the findings of the trial court and dismissed the appeal.

The appellant’s counsel, Shri N. C. Chatterji, contended that the lower courts erred in holding that, despite several irregularities in suit No. 90 of 1933 filed under Section 92 of the Civil Procedure Code, the decree was not void but merely voidable, and could be set aside only by a person with an interest and title. He argued strongly that when the Collector granted permission to three named persons, a suit instituted by only two of them was wholly incompetent, given the mandatory nature of Section 92(2) of the Civil Procedure Code, which provides that, save as provided by the statute, no suit claiming any relief specified in sub-section (1) of Section 92 may be instituted concerning any such trust except in conformity with that sub-section. He relied heavily on the Privy Council decision in Mt. Ali Begam v. Badra-ul-Islam Ali Khan, 1938 PC 184 (AIR V 25) at page 186 (B), which held that when written consent of the Advocate General or Collector is given to a suit by three plaintiffs, the suit cannot be validly instituted by only two and must conform to the consent.

Furthermore, the appellant’s counsel asserted that there was no evidence that Mahant Bharat Das was insane nor any court determination of such insanity that would justify appointing Devi Prasad Singh as his guardian. He maintained that the compromise was not sanctioned by the Court in the interest of the trust but served only the interests of Mahant Bharat Das. He also emphasized that the filing of the suit during the pendency of the Privy Council appeal and the decree’s issuance within six months of the suit’s commencement were highly suspicious.

It was asserted that, on its face, the decree in question was fraudulent and collusive. The opponent further urged that the burden lay with the plaintiffs to establish their title and right to possession. It was pointed out that the plaintiffs’ claim rested entirely on the compromise decree, a fact that could be seen not only from the plaint but also from the statement of their pleader recorded at trial on 2-12-1942. In that statement the pleader declared that the plaintiffs would not rely on any custom and would not attempt to prove any custom. He explained that the plaintiffs sought to establish the title of Mahant Ram Sarup Das by invoking the decision rendered under Section 92, and not by invoking any customary right. He further affirmed that Mahant Ram Sarup Das had not been appointed by any custom, that no evidence of custom was offered in support of his appointment, and that no custom would be proved. Consequently, it was urged that, before any decree could be entered in favour of the plaintiffs, it was necessary first to determine the validity of the decree in suit No. 90 of 1933.

On the other side, the learned counsel, Shri K. B. Asthana, disputed the contention that a suit filed by only two of the three persons who had obtained the collector’s sanction was incompetent and that the resulting decree was void, except where the sanction expressly required that all three persons sue jointly. He observed that the omitted third person, Ram Sarup Das, was precisely the individual whose appointment as Mahant was sought in the plaint. Counsel further argued that even if a suit instituted by two of the three persons were defective under Section 92 of the Civil Procedure Code, such a defect did not deprive the court of jurisdiction to pass a decree, because no objection on that ground had been raised and the court undeniably possessed jurisdiction over the subject matter of the suit. He maintained that an application for sanction of the compromise had been made to the court, that the court had indeed granted the sanction, and that the sanction was sufficient to bind the Mahant and the institution he, through his guardian, represented. Regarding the allegation of fraud or collusion, counsel relied on the High Court’s conclusive finding that no fraud or collusion existed and asserted that this finding could not be reopened before this Court. The Court agreed that the attack founded on fraud or collusion could no longer be pursued in view of the High Court’s determination. While the parties presented vigorous arguments concerning the validity of the compromise decree, the Court expressed that it was not necessary to resolve those contentions at this stage.

In the appeal, the Court examined the submissions of the parties in order to determine the appropriate order to be issued. Counsel for the respondent, Ram Sarup Das, relied heavily on the finding of the High Court that the plaintiffs, at the very least, acted as de facto trustees in possession of the Asthan and its properties, and therefore possessed the standing to maintain the suit. That argument appears to have merit. Both courts below had concurrently concluded that, following the compromise decree in suit No. 90 of 1933, the plaintiffs together with the other trustees and Ram Sarup Das obtained possession of the Asthan and its attendant properties. Accordingly, except for the items listed in “list C,” the properties were mutated in the name of Ram Sarup Das, and the plaintiffs and Ram Sarup Das have since managed and possessed the Asthan and its assets. The lower courts also held that the first defendant, Vikrama Das, never possessed the Asthan, even though after the decree of the Privy Council he was able to have some of the properties mutated in his name. The courts further found that the plaintiffs, in conjunction with Ram Sarup Das, continued in possession of the Asthan up to the filing of the present suit. In view of these findings, the Court was called upon to decide whether a person who has been in de facto possession and management of the Asthan and its properties from 1934 to 1941, and thereafter up to the present, and who claims to be a trustee under a court decree—whether that decree is valid or invalid—has a sufficient interest to sue for the removal of a cloud cast by the defendant’s actions against the interests of the Asthan. The Court noted the authorities in Mahadeo Prasad Singh v. Karia Bharti (1935 PC 44, AIR V 22) and Ram Charan Das v. Naurangi Lal (1933 PC 75, AIR V 20) in this regard. It was also emphasized, as the trial Court had found under issue No. 11, that the present suit is essentially an action to set aside the Revenue Court’s order directing the mutation of the first defendant’s name, Vikrama Das, onto the property. Such a mutation would gravely endanger the interests of the Asthan, particularly because the first defendant has persistently claimed the Asthan’s properties as his private assets and has asserted that he is the duly appointed Mahant—contentions that have been maintained in both lower courts and reiterated in the present proceedings, as reflected in ground No. 10 of the High Court appeal and ground No. 7 of the appellant’s statement of case. It is

With reference to the contention that has been consistently raised, the Court noted that both lower courts had arrived at the same three conclusions. First, they held that the Asthan constituted a public trust and that the lands and buildings attached to it were not the personal property of the Mahant. Second, they found that the defendant had no right to the Mahantship of the Asthan, either on the basis of his claim of succession or on the basis of the document dated 10-7-1926 executed by Bharat Das. Third, they determined that the defendant had never possessed the trust’s properties at any time. The Court observed that, although the plaintiffs had expressly based their suit on the title they claimed under the compromise decree, the possibility that this title might be invalid did not remove the remaining issue. That issue was whether the original plaintiffs or Ram Sarup Das could maintain the suit in the capacity of “de facto” managers who had, for many years, actually possessed and administered the Asthan.

The Court then explained the general legal principle that a person who does not hold a title and who is merely an interloper cannot sue as of right. However, the Court emphasized that when a public trust is involved, the judiciary has a duty to protect the trust’s interests and the interests of those for whose benefit the trust exists. Consequently, courts must have the authority to support appropriate proceedings brought by the trust and to grant relief that benefits the trust, imposing any conditions that may be necessary. Applying this principle to the present case, the Court observed that if Ram Sarup Das indeed had no title and was regarded as an interloper—as the record indicated—then the same characterization applied to the other side. The Court could not permit a public trust to be left at the mercy of unauthorised persons vying for control. Nonetheless, the Court found it appropriate that someone continue the litigation on behalf of the trust. In view of Ram Sarup Das’s long-standing management and possession of the Asthan as Mahant, and his assertion that he was acting for the trust’s benefit, the Court held that he should be permitted to proceed on the trust’s behalf until his title could be examined in proper proceedings. Accordingly, the Court affirmed the lower courts’ three concurrent findings: the Asthan is a public trust, the defendant is not entitled to its Mahantship by claim of succession or by the 10-7-1926 document, and the defendant never possessed the trust’s properties.

The Court noted that the third finding was that the defendant never possessed the properties in question. However, the Court chose to discharge the findings in favour of the original plaintiffs, namely Ram Sarup Das, because the validity of the compromise decree remained unresolved. Consequently, the Court held that the decree of the trial Court, insofar as it gave effect to the decree in suit No. 90 of 1933, should be set aside. The Court ordered that a declaration replace the vacated decree. The replacement declaration stated that the mutation recorded in favour of the first defendant with respect to the Asthan or its properties does not affect the rights of the Asthan or any duly constituted Mahant thereof. The declaration further clarified that the first defendant has no interest in those properties and is not entitled to possession of the Asthan or its lands. Moreover, the declaration permitted Ram Sarup Das, acting for the benefit of the Asthan, to recover in execution proceedings possession of those properties listed in categories A, B and C, which the defendant may have obtained by virtue of the mutation. Subject to this modification of the decree, the Court directed that the appeal be dismissed and that costs be awarded throughout.

The Court observed that this order was only a temporary measure. It emphasized that it could not ignore the reality that a public trust existed and that, according to the facts before the Court, an alleged intermeddler who claimed authority under a decree that was deemed void was actually in possession and managing the trust. The Court recognised that, when proper proceedings are instituted to determine the true authority, it may be found that the intermeddler possesses legal authority, or that it may be appropriate to vest such authority in him if it has not already been done, or alternatively that another individual or body should be appointed. However, the Court stated that these issues were not within the scope of the present proceedings. The sole purpose of the present judgment was to bring the current factual situation to the notice of the Advocate General of Uttar Pradesh and to leave it to him to decide whether, on his own initiative, he should commence proceedings under S. 92 of the Civil Procedure Code or take other suitable action. The Court directed that a copy of the judgment be sent to the Advocate General.