JUDGMENT
Rachhpal Singh, J.
1. These are two applications in revision against two orders passed by the learned Subordinate Judge of Muttra. One of the plaintiffs, the applicant, and Nathi Lal, instituted a suit in the Court of the Subordinate Judge under the provisions of Section 92, Civil P.C., against Sunder Lai. It appears that one Bahadur Singh, father of Sunder Lal, by means of a registered deed dated 16th November 1924, created a trust. Under that deed according to the case set up by the plaintiff, six trustees were appointed, one of them being Sunder Lai, the son of Bahadur Singh. The other trustees died one after the other and Sunder Lal continued to be the manager of the trust property. The plaintiffs in their plaint stated that Sunder Lal had been mismanaging the trust properties. It was also stated that under the terms of the trust deed Sunder Lal had been directed that he should execute a rent deed in respect of a particular house and nohra which he and his sons occupied and that the rent should go towards the income of the trust property. The plaintiffs alleged that the defendant never executed any rent deed in respect of this house. There were several other allegations in the plaint in respect of the charges of mismanagement and of not keeping accounts. The plaintiffs prayed that new trustees should be appointed, that accounts should be taken from the defendant and that a proper scheme should be framed for the management of the trust.
2. The case of the plaintiffs was that it was a public trust. Sunder Lal filed a written statement contesting the claim. He set up a case that the trust was private and not public and therefore no suit could be maintained against him. He denied the allegation that he had to execute a rent deed in respect of the house. Issues were framed in the Court below. One of the issues was : “Whether the trust in dispute was a public trust or a private one?” During the pendency of the case Sunder Lal died. Thereupon the plaintiffs made an application asking that the names of the two sons of Sunder Lal should be brought on record. This prayer was contested by the sons of Sunder Lal who contended that they should not be made parties. Upon that the plaintiffs made an application that one Tikam Singh who is a nephew of Sunder Lal and another person, Phundan Lal, should be brought on record as Sunder Lal’s legal-representatives. Phundan Lal disclaimed all interest in the property, while Tikam Singh asserted that he was holding it in his own right and not as representative of Sunder Lal. The learned Subordinate Judge held that the action against Sunder Lal was merely personal and the right to sue did not survive against his heirs. He did not agree to Tikam Singh’s name being brought on record. The result was that he hold that the suit had abated because of the death of Sunder Lal.
3. The plaintiff 1 has preferred these two revision applications. One is about the order passed by the Court below declaring the suit to have abated and the other is about the order dated 21st November 1932, under which the Court directed that the plaintiffs should bring on record any other person other then the sons of Sunder Lal, if they wished to do so, whom they considered to be the legal representatives of the deceased.
4. We have heard learned Counsel for the parties and are of opinion that the view taken by the Court below that the action against Sunder Lal was a personal” action and the right to sue did not survive on his death against his heirs, is not correct. One of the important questions for determination in the suit as between the plaintiffs and Sunder Lal was as to whether the property in dispute was a public trust or a private trust. Sunder Lal contended that it was a private trust and so far as that question is concerned his sons are at liberty, if they choose, to say that the plaintiffs’ suit should fail on the ground that the trust was not a public trust. So far as this part of the cause of action is concerned, it cannot be said that the sons of Sander Lal are not legal representatives or that the cause of action did not survive against them on his death. Another question for determination in the case was, as regards the plea of the plaintiffs that under the trust deed Sunder Lal was to execute a rent deed and was to pay the rent of that house to the trustees. In respect of this portion of the claim the same argument applied and it cannot be that the cause of action did not survive. Then the most important point involved in the case was the prayer of the plaintiffs for the formation of a scheme for the management, of the trust. A schedule could only be formed if it was held that the trust was public. The learned Subordinate Judge in his order refers to a ruling reported in A.I.R, 1926 Mad. 162, which supports the contention of the plaintiffs. It was decided in that case that in a suit under Section 92, Civil P.C., for removal of the defendant and for forming a scheme the loath of the defendant, pending the suit does not cause the whole suit to abate. This is against the view taken by the learned Subordinate Judge in his judgment. He stated that this view was in favour of the plaintiffs, but somehow or other he came to the conclusion that the facts of this case were somewhat different and therefore he was not inclined to follow it. The absence of the Advocate-General from the suit does not make any difference to the case. The learned Counsel for the respondent has contended that the case which the plaintiff had instituted was really one for the removal of the trustee (Sander Lal), and that the prayer about the formation of a scheme was put in the plaint as a mere matter of form. We and ourselves unable to agree with this contention. The plaintiffs in their plaint after reciting the circumstances which would give them a right to ask the Court to form a scheme for the management of the trust make this prayer and the fact that the prayer is mentioned in the last sub-clause of the last para of the plaint does not make any difference whatsoever. In our opinion the right to sue survived against the heirs and the plaintiffs’ prayer, asking that the sons of Sunder Lai, defendant, should be brought on the record as legal representatives was (justified and should have been granted. Of course, it may be that the sons may come forward and disclaim all interest in the trust property; but unless they are made parties, the plaintiffs cannot be in a position to know what attitude these sons of Sunder Lal will adopt.
5. For these reasons we allow these revisions so far that we set aside the order passed by the Court below, declaring the suit to have abated and direct that the names of the two sons of Sunder Lal be brought on record as his legal representatives and then the case should be decided according to merits. So far as Tikam Singh and Phundan Lal are concerned, we are of opinion, that the plaintiffs’ application should be and is dismissed. The plaintiff applicant will get his costs from the opposite party (sons of Sunder Lai). Tikam Singh will get his costs from the plaintiff. Phundan Lal, being unrepresented, is not entitled to any costs.
