Order of Reference to a Full Bench.-This appeal brings into prominence a conflict of decisions as regards the maintainability of suits filed by so-called de facto trustees for recovery of possession of property alleged to belong to the trust or institution concerned. The learned District Munsiff following the decision in Atmaram Rao’s Charity v. Packiri Mohammed1, by Horwill, J., who followed Vedakannu Nadar v. Ranganatha Mudaliar2, a bench decision by Abdur Rahman and Venkatasubba Rao, JJ., dismissed the present suit holding that a suit by a de facto trustee was not maintainable. The learned Subordinate Judge has remanded the suit following another line of decisions holding that if the plaintiff-Devasthanam were to prove that it is a de facto trustee and is in possession and management of the other properties of another Devasthanam it can maintain this suit. Subsequent to the bench decision in Vedakannu Nadar v. Ranganatha Mudaliar2 there is a decision by Wadsworth, J., in Subramania Gurukkal v. Srinivasa Rao3 in which this bench decision is nowhere considered and in which it was clearly held following two other decisions, Appasami Pillai v. Ramu Thevar4 and Kasi Chetty v. Devasikamony Nataraja Dikshitar5, that a suit by a de facto trustee was maintainable. .

Prior to the bench decision, Vedakannu Nadar v. Ranganatha Mudaliar2, there appears to have been a wealth of authority to support the position that a de facto trustee who was in actual possession and was administering the trust in the interests of the institution was entitled to file a suit to recover possession of the trust property from persons into whose hands it had gone wrongfully. There are two Privy Council decisions which appear to lend support to this legal position. One is Mahadeo Prasad Singh v. Karia Bharti6, which laid down that as the plaintiff was in actual possession of the Math he could maintain the suit for its benefit.

In Mahant Ram Charm Das v. Naurangi Lal1, their Lordships of the Privy Council observed at the commencement of their judgment that they were not concerned with any right of title because both the courts below have found that the plaintiff is the person in actual possession of the Math and as such entitled to maintain a suit to recover possession of the property not for his own benefit but for the benefit of the Math. It is true that this right was not in dispute and was not specifically decided by their Lordships but they gave their seal of approval to the findings of the courts below.

This conflict of decision was considered by Chandrasekhara Aiyar, J., on whose reference the matter was placed before a Full Bench and considered in Zakka Pattabhirama Reddi v. Balarami Reddi2. In the case as reported Chandrasekhara Aiyar, J., was of opinion that the position in Vedakannu Nadav v. Ranganatha Mudaliar3, conflicted with Kasim Sahiba v. Sudhindra Thirthaswami4. Unfortunately the Full Bench did not resolve this conflict of opinion as it was unnecessary for the disposal of that particular appeal. The learned Chief Justice in the last paragraph of his judgment assumed for the purpose of that case that a de facto trustee can alienate trust property when he acts bona fide for the benefit of the trust but did not specifically decide that point.

The result is that there is a conflict of decisions still unresolved which greatly embarrasses courts which are called upon to adjudicate suits filed by so-called de facto trustees. In Vedakannu Nadar v. Ranganatha Mudaliar3it was held that the de facto trustee as such had no locus standi to maintain an action on behalf of the trust even if the action is taken to have been instituted for the benefit of the trust and that his position was that of an intermeddler or a wrongdoer (unless on the facts of each case a presumption can be raised in his favour of being a trustee de jure). A de facto trustee has no place in the English law Courts which only recognise either de jure trustee or a trustee de son tort