A de facto trustee, in possession and management of the institution, may maintain a suit for the recovery of trust property on behalf of the institution.

SATYANARAYANA RAJU, J. :- This is an Appeal against an order of the Subordinate Judge of Cuddapah dismissing a petition for leave to sue in forma pauperis under O. 33, R. 1, Civil P.C.

2. The appellants case, is that the nine items of lands, described in the schedule annexed to the petition are the endowments of a mosque called Maddekhan Masjid, of which one Haji Khan Jamman, who died en 19-8-1849, and respondents 1 and 2 are the trustees. He alleged that the three trustees divided some of the properties among themselves prior to 1925 and the remaining properties subsequent thereto and that thereafter they neglected the management of the institution and alienated the suit properties in favour of respondents 3 to 30, who are now in possession.

The appellant, who is the son of the 1st respondent, claims that he has been looking after the institution for some years and alleges that the alienations of the suit properties in favour of respondents 3 to 30 are void and not binding on the institution.

3. The petition filed by the appellant for leave to sue in forma paupsris was contested by respondents on the grounds that it did not disclose any valid cause of action for the appellant to sue.

4. The Subordinate Judge held, that the appellant did not claim recovery of the properties as a beneficiary of the trust and that the petition did not disclose a valid cause of action for the appellant to sue and dismissed the petition.

5. It is true that the appellant doss not claim that he is a beneficiary of the trust. The only ground on which he seeks to maintain the present action is in his capacity as a de facto trustee of the institution.

6. The rights of a de facto trustee to maintain 3 suit for the enforcement of the rights of the institution were recognised by the Madras High Court in Moideen Bibi Ammal v. Rathnavelu Mudaliar, AIR 1927 Mad 69 (A), Md. Ibrahim v. Sundaram Chetti, AIR 1926 Mad 1066 (B), and Kasi Chetty v. Srimathu Devasikamany Nataraja Dikshithar, 1913 Mad WN 131 (C), and by the Privy Council in Ram Charan Das v. Naurangilal, AIR 1933 P.O. 75 (D), and Mahadeo Prasad Singh v. Karia Bharti, AIR 1935 P.O. 44 (E).

But, however, in Vedakannu Nadar v. Annadana Chatram, AIR 1938 Mad 982 (F), Venkatasubba Rao and Abdur Rahman, JJ., took a contrary view. The learned Judges held that a de facto trustee as such had no locus stand! to maintain an action on behalf of the trust, even though the action was found to have been taken in the interests of the trust and for its benefit.

This decision was based on the ground that a de facto trustee was really no other than what is known to law as a trustee de son tort and his position did not improve by describing himself to be a trustee de facto and that as a trustee de son tort he could not confer a right on himself to maintain suits on behalf of the trust even if they were taken to have been instituted for the benefit of the trust. This decision was followed by Horwill, J., in Vasudeva Rao v. Packiri Muhammad Rowther, AIR 1944 Mad 171 (U).

The learned Judge felt bound by the decision in AIR 1938 Mad 982 (F), which laid down a principle of general application and held that a person who is not the de jure trustee but is only a de facto trustee is not competent to sue for recovery of possession of trust property alleged to be wrongfully alienated.

7. On the ground that it involved the consideration of conflicting decisions as to the rights and liabilities of manager trustees acting de facto and not de jure, Chandrasekhara Ayyar, J., referred the matter for the decision of a Full Bench in Pattabhirama Reddi v. Balarami Reddi, AIR 1945 Mad 43 (FB) (H), but the learned Judges who constituted the Full Bench considered that the question did not arise on the facts of the case because that was not a case where de facto trustees, in the absence of de jure trustees, took action with regard to the property of the trust in the interests of the trust but was a case where persons who had no manner of right