JUDGMENT
Greaves, J.
1. In this suit the plaintiffs claim to remove defendant No. 1 from the mutwalliship, on the ground that he has committed a breach of trust by alienating a part of the trust property to defendant No. 2, who is alleged to have taken the property with the knowledge that it was trust property. Defendant No. 2 alleges that the property alienated is not trust property and that in any case he had no knowledge of any trust. A preliminary objection was taken on behalf of defendant No. 2 that he is not a necessary party and that he cannot be joined in the suit, which is one under Section 92 of the Civil Procedure Code. In support of this objection two cases are relied on, namely, Budh Singh, Dudhuria v. Niradharan Roy 2 C.L.J. 421 at p. 434 and Budree Das Mukim v. Chooni Lal Johurry 33 C. 789 at p. 805; 10 C.W.N. 581. With regard to both cases I am quite in agreement with them in so far as they decide that relief such as is asked here against defendant No. 2, does not come within the purview of Section 539 of the Civil Procedure Code, Act XIV of 1382, which is now represented by Section 92 of the present Civil Procedure Code, but I see no reason why, having regard to the provisions of Order I, Rule 3, of the present Civil Procedure Code defendant No. 2 should not be made a party to the suit and, if my decision is against him, I see no reason why he should not in this suit be declared to be a trustee of the trust property and be directed to convey the property. I should add that I am fortified in the view that I have expressed by a consideration of the provisions of Order XVI, Rule 4 of the English Procedure Rules: see Compania Sansinena De Carnes Congeladas v. Houlder Brothers & Co Ltd. (1910) 2 K.B. 354; 79 L.J.K.B. 1094; 103 L.T. 333, and the notes in the English Annual Practice for 1915 at page 221. Order J, Rule 3, of the Civil Procedure Code is very similar in terms, in fact almost identical with Order XVI, Rule 4, of the English Procedure Rules and is probably founded thereon and consequently the opinions expressed in Order XVI, Rule 4, by the English Judges may well be considered in construing the provisions of Order I, Rule 3. I accordingly overrule the preliminary objection.
