JUDGMENT Burkitt and Knox, JJ.
1. The suit out of which this first appeal has arisen was instituted by the Collector of Moradabad (under instructions from the Local Government) under the provisions of Section 539 of the Code of Civil Procedure.
2. The case for the plaintiff is that one Miran Shah, the ancestor of all the defendants, had, before his death some fifty years before suit, made a waqf of mauza Haibatpur for religious and charitable purposes, for the up-keep of a mosque and imambara he had founded, for the expenses of an annual "urs" or religious assembly to commemorate the Pir Ghaus Azam, to feed the poor at the "urs" and to keep his (Miran Shah's) tomb in repair. It is admitted that mauza Haibatpur had been granted revenue-free to Miran Shah, who was a man of great piety and sanctity among Musalmans; that the revenue-free grant was made by the Oudh Government, and that the village still remains muafi, not having been resumed at either of the two settlements which have taken place since the British Government came into possession. It was alleged for the plaintiff that the village came into the possession of Miran Shah's heirs as trustees, and that they for a considerable time performed properly their duty as such; but latterly (having become Shiahs) they have, in breach of the trust, treated the trust property as their own, have mortgaged and otherwise alienated some portions of it, and have pulled down some of the trust buildings and appropriated to their own use the value of the materials. The plaintiff accordingly prayed for the appointment of new trustees--which of course implies the dismissal of the existing trustees; that the property be declared to be wakf, and that the defendants be required to furnish accounts and to pay sums which they had improperly appropriated in breach of the trust. It was also prayed that a scheme for the management of the trust should be settled.
3. Those of the defendants who appeared first of all raised a plea of limitation to the effect that they had been dealing with the property as their own for more than twelve years. There does not seem to have been any discussion as to this plea at the hearing. Clearly, once the trust was established, such a plea could not prevail. The next pleaded want of parties, that their trans-ferees should have been made parties. This plea was overruled by the lower Court. In the fourth paragraph of the written statement the defendants deny the fact of the endowment, alleging that "the property in dispute was never endowed for charitable purposes as alleged by the plaintiff on behalf of any party, i.e., for the purposes set forth in the plaint." This paragraph, while denying the plaintiff's case as to the trust, may perhaps be regarded as an admission that the objects of the alleged waqf as set forth in the plaint are charitable purposes. In subsequent paragraphs the defendants deny that the income of the property in dispute was ever applied to the purposes mentioned in the plaint. They also deny the demolition of an imambara in Haibatpur and of an ancestral house in Sambhal. The first portion of this plea--like the first paragraph of the written statement--takes advantage of a blunder in the plaint, afterwards amended. The imambara, mosque, etc., were not in Haibatpur, but in an adjoining mohalla of the town of Sambhal. There is nothing in the plaint about an ancestral house. The seventh paragraph of the written statement is important. In that paragraph the defendants admit that the property in dispute descended to them from Miran Shah, and they add that they spend money on the mosque, imambara and tomb according to their respective positions, a statement which at the hearing of this appeal was explained to mean that they were not legally bound to spend any money on such purposes, but did so of their own free will and pleasure. These are the only pleas which call for notice.
4. The District Judge gave the plaintiff a decree. The defendants appeal.
5. The first plea argued for them was that the suit was bad because the transferees from the defendants had not been impleaded. That plea was overruled, and we think rightly, by the learned District Judge. In support of this contention the learned advocate for the appellants cited the case of Bishen Chand v. Syed Nadir L.R. 15 I.A. 1, in which, at p. 9, their Lordships found themselves unable, in a suit in which all the parties interested were not before them, to decide the extent of certain trusts, and whether any surplus remained over to the mutawalli for his private use. We cannot see that this case is any authority for the proposition that to a suit for the execution and. administration of a trust the alienees of the trust property, who have an interest adverse to the trust are necessary parties. In the case of Chintaman Bajaji Dev v. Dhondo Ganesh Dev I.L.R. 15 Bom. 612, which was a suit under Section 539 of the Code of Civil Procedure for the execution and administration of a trust and for removal of the trustees, who had incumbered and alienated a large portion of the trust property, the incumbrancers and alienees were not considered necessary parties. And in the case of The Attorney-General v. The, Port Reeve and Ors. of Avon 33 L.J. N.S. Ch. 172, it was held hy the Lords Justices that persons claiming title adverse to a trust cannot be made parties to a suit for the execution of the trust. No case has been shown to us in which, in a suit under Section 539 of the Code of Civil Procedure, the alienees or incumbrancers have been made parties, and indeed it does not appear what relief could be granted against them under that section. We think that a prayer for recovery of possession from such persons could not be entertained under that section. The plaintiff in this suit could not institute a suit for possession. Such a suit could be instituted only by the trustee. We therefore overrule this plea.
6. Next it is cont