Gobind Singh and Others vs Maharaj Kumar Gopal Saran Singh

Jwala Prasad, J.—These appeals arise out of execution proceedings. The judgment-debtors are the appellants before us. Their principal objection in the Court below was that the respondent Captain Maharaj Kumar Gopal Saran Narayan Singh was not entitled to execute the decrees, inasmuch as they were obtained by Sir Ali Imam as President of the Board of Trustees under a deed executed by the respondent on the 26th September 1917. The trust purported to be for some charitable purposes, and the properties covered by the trust were heavily incumbered. There were several trustees named in the deed, and Sir Ali Imam was constituted President of the Board of Trustees. The Maharaj Kumar delivered possession of the properties which comprised the 9 annas Tikari Raj to Sir Ali Imam in order to carry out the purposes of the trust. He also assigned to Sir Ali Imam the rents due to him from the tenants prior to the creation of the trust. As President of the Board of Trustees, Sir Ali Imam obtained the decrees in question with respect to the rents due from the judgment-debtors for years both prior and subsequent to the creation of the trust. The decrees specify the years for the rents whereof the suits were instituted and the amounts decreed against the judgment-debtor. About two and a half years later, the respondent took possession of the properties of the estate without the permission or sanction of the Trustees including the President of the Board, and subsequently got his name registered in the Collectorate registers by having the name of Sir Ali Imam removed therefrom. The Trustees found it impossible for some reasons to carry out the purposes of the trust, and instituted a suit in the Court of the Subordinate Judge of Patna for a declaration that the trust was incapable of being given effect to and for their being relieved of all responsibilities in respect of their dealings with the trust properties. The Maharaj Kumar, who was defendant No. 1 in the suit, filed a written statement stating inter alia that the trust created by him was invalid in law and that he was not competent to execute the trust deed. The suit was decreed, and it was declared that the trust deed was an invalid document and incapable of being given effect to.

On behalf of the appellants, it is contended that the respondent is not entitled to execute the decree without having obtained an assignment thereof from Sir Ali Imam, the holder of the decree, in view of the terms of Order XXI, Rule 16. Mr. Hasan Imam on behalf of the respondent urges that the respondent is entitled to execute the decree, inasmuch as the interests of the decree-holder in the decrees devolved upon the respondent" by operation of law" and consequently no deed of assignment is required.

In support of his contention he has cited the following authorities: Umasoondhury Dassy v. Brojonath Bhuttacharjee 18 C. 347 : 8 Ind. Dec. (N.S.) 228 Sethurayar v. Shanmugam 21 M. 353 : 7 M.L.J. 279 : 7 Ind. Dec. (N.S.) 605 Miller v. Abinajeoh Chunder Dutt 4 C.W.N. 785 Anand Mohan Roy v. Promotho Nath Ganguli 57 Ind. Cas. 874 : 25 C.N.W. 863 and Smailes v. Wright (1805) 3 M. & S. 659 : 105 E.R. 720.

On behalf of the appellants, reliance is placed upon the case of Kesho Prasad Singh v. Lal Brij Mohan Lal 38 Ind. Cas. 154 : 2 P.L.J. 199 : 1 P.L.W. 355. The appellants'' contention is mainly based upon the assumption that Sir Ali Imam was a trespasser ab initio with respect to the properties, inasmuch as the trust deed was invalid; and that is the ground upon which the decision in the case of Maharaja Kesho Prasad Singh v. Lal Brij Mohan Lal 38 Ind. Cas. 154 : 2 P.L.J. 199 : 1 P.L.W. 355 is founded. There it was held that Sri Newas Prasad Singh was a mere trespasser and the adoption set up by him was invalid. It was further held that he had taken possession of the Dumraon Raj forcibly under colour of a false title without the least permission or sanction of the Maharaja Bahadur of Dumraon who was ultimately held to be the real owner of the estate. In the present case, as stated at the outset, Sir Ali Imam got into possession of the properties under a deed executed by the owner thereof and with his consent in order to carry out the wishes of the owner thereof and consequently he cannot in any sense of the term be said to be a trespasser. His possession was lawful throughout and he parted with the possession or the possession ceased, simply because the object for which the trust was created could not be carried out. The trust, therefore, was defunct and the possession of Sir Ali Imam so long as it continued, became that of a simple trustee for the real owner of the properties, namely, the respondent. This is the principle enunciated in Section 71, 77, 83 and 94 of the Indian Trusts Act. Illustration (c) to Section 83 runs as follows:

A conveys land to B upon trust to sell it and apply one moiety of the proceeds for certain charitable purposes, and the other for the maintenance of the worship of an idol. B sells the land, but the charitable purposes wholly fail, and the maintenance of the worship does not exhaust the second moiety of the proceeds. B holds the first moiety and the part unapplied of the second moiety for the benefit of A or his legal representative. "Similar is the Illustration (b) of Section 94

A by mistake assumes the character of a trustee for B, and under colour of the trust received certain money. B may compel him to account for such monies.

The Act is not applicable to this part of the country; but the aforesaid provisions in the Act, notably the above sections, fully set out the principles that should govern a case like the present one; and we are bound to follow these principles inasmuch as they accord with equity and justice of the case. The decrees in the present cases were obtained with respect to the rents and profits of the properties which were the subject matter of the trust. The trust having failed, the properties and their accessories, namely, the rents and profits including the decrees in question must all be held to have reverted to the original owner. The respondent has taken possession of all the Immovable properties, and he must be deemed in law to be in possession of the rent decrees in question. There was, therefore, no necessity of any deed of assignment, inasmuch as the respondent, who was the rightful owner of the Raj, by operation of law, namely, the extinction of the trust deed, becomes the owner entitled to immediate possession not only of the Immovable properties but also of the rent decrees in question. It is not necessary to refer in detail to the cases referred to by the parties. They do not relate to an invalid trust or the consequences of a failure or extinction of a trust as in the present case. But the principle referred to above may be gathered from most of the authorities, the nearest apposite case is that of Umasoondury Dasey v. Maharaja Brojonath Bhuttacharjee 16 C. 347 : 8 Ind. Dec. (N.S.) 228. The case of Keshoo Prasad Singh v. Lal Brij Mohan Lal 38 Ind. Cas. 154 : 2 P.L.J. 199 : 1 P.L.W. 355 rleied upon by the appellants is distinguishable from the present case as shown above. It is not necessary to discuss further this point. I am clearly of opinion that the view taken by the Court below is correct, and under Order XXI, Rule 16 the respondent is the representative of Sir Ali Imam, the original decree-holder, by operation of law and is entitled to execute the decree in question.

Mr. Nurul Hassan appearing on behalf of the appellant in Miscellaneous Appeal No. 52 contends that the decree in question must be deemed to be a mere money decree, and not a rent decree. This is a new point not taken in the Court below and requires investigation into facts which we are not competent to do in this Court. Upon the face of it the decrees appear to be rent decrees, and it is not disputed that they were in respect of the rents due from the tenants. We are aware of the distinction between a decree obtained for rent by one who is not a landlord and a decree for rent obtained by a landlord. The rents of the period prior to the creation of the trust were assigned to Sir Ali Imam and that is the ground upon which it is urged that with respect to that portion of the rents covered by the decrees Sir Ali Imam was not a landlord. The assignment was made to him, and at the time when the suits for rent were brought he was a landlord and had his name registered in register D as such. Therefore, he must be deemed to be a landlord with respect to the rents for the years covered by the decrees in question; and at the time the execution of the decrees has been levied the Maharaj Kumar is the landlord.

Mr. Nurul Hassan further contends that the respondeat is not entitled to execute the decrees because he is one of the judgment-debtors named in the decrees. The facts are now well-known. He was a judgment debtor because he created the trust. Under Order XXXI, Rule 1 of the CPC he was impleaded as a party. It is not said that he is a tenant of the land in question. The decrees in question were really against the tenants, the appellants in the present case. I do not see any force in this contention.

I, therefore, dismiss the appeals with costs.

Foster, J.

I concur.