A suit can be maintained by a de facto trustee if the institution of the suit was under a bona fide mistake and the interests of the trust are paramount.

KANGANADHAM CHETTY, J. :

In this Second Appeal, Plaintiff and the second defendant are the Appellants. The suit (O. S. No. 237 of 1948) was filed before the District Munsif, Vijayawadu, by one Rameswaradas Bavaji describing himself as the Matadhipatni of the Brahmachari Bavaji Mutt at Bezwada, for a permanent injunction restraining the defendant Pumachandra Rao from interfering with his possession and enjoyment of the suit land as the head of the Mutt. Later, the plaint was amended by asking for possession.

2. Plaintiffs predecessor-in-office was one Gokuladas. He was the Mahant of the aforesaid Mutt for several years. During his tenure he granted a permanent lease to one Veerabhadra Rao, a benamidar for the defendants father. The father died and the defendant was claiming under the lease. While Gokuladas was functioning as the Mahant, the Endowments Board framed a scheme for the administration of the Mutt, appointed certain trustees and directed them to file a suit for cancellation of the lease. O. S. No. 179 of 1931 was the result.

It was decided therein that the lease could be valid only for the lifetime of Gokuladas. Gokuladas died. 8 months later the plaintiff claiming to be his successor, nominated under a deed of settlement dated 9-1-1946. filed O. S. No. 237 of 1948 out of which this Second Appeal arises.

3. The defendant resisted the suit pleading that the deed of settlement aforesaid was not valid, that one Arjunadas was the rightful successor to Gokuladas and the suit was not maintainable by reason of an Executive Officer having been appointed under the Scheme framed by the Endowments Board and a Receiver too having been appointed to the Mutt in another suit. The defendants claim was limited to a half of the property as the other half was in the possession of his brothers son, Naga VisweSwara Rao. That nephew was subsequently impleaded as the 3rd defendant and has been sailing with the defendant - henceforth the 1st defendant - all through.

4. In the meanwhile, the executive Officer, Nanduru Rama Rao, who has so far not taken any steps for the recovery of the property for the Mutt, bestirred himself and moved an application I. A. NO. 1685 of 1948 seeking to bring on record the Mutt itself as 2nd plaintiff represented, of course, by its Executive Officer. Plaintiff objected, questioning the jurisdiction of the Board to interfere with the administration of the Mutt. Defendants, too protested and the petition was dismissed. Later, Rama Raos successor, Kasi Viswanatnam as Executive Officer moved I. A. No. 909 of 1949 for leave to come on record.

But this time he rested content with asking for the role of a defendant for the Mutt. The plaintiff had no objection and the Mutt was impleaded as the 2nd defendant. Subsequently, one Subrahmanyam, who became Executive Officer by that time, presented I. A. No. 321 of 1951 for transposition of the Mutt as the 2nd plaintiff. Plaintiff again endorsed his consent. The 1st defendant, the lessees successor, however, resisted and the Court dismissed the application. The suit was then tried on the preliminary question of its maintainability and was dismissed on the ground that the plaintiff was neither a de facto nor a de jure trustee of the Mutt. Plaintiff appealed to the Court of the Subordinate Judge, Vijayawada, but was again unsuccessful. Hence this Second Appeal by the plaintiff and the 2nd defendant jointly.

5. On the contentions of the respondents, the following points arise for consideration :

1. (a). Is this second appeal maintainable in view of the 2nd appellant not having preferred or joined the plaintiff in preferring the first appeal?

(b) Is the contention about transposition of the Mutt open to the appellants at this stage when they had not questioned the correctness of the lower courts order of refusal so far?

2. Was the refusal justified? If not can the transposition be effected now?

3. Is the suit maintainable by the plaintiff as a de facto trustee.

6. Point 1 (a) : In