1. The first question is, having regard to the construction to be put on the will of Bhugwan Kulla, and the events that have happened, what is the position and what are the rights of the plaintiff? As to the construction to be put on the will, it is to be observed, in the first place, that there does not appear to be any general disposition of the testator's property unless such general disposition be contained in the 1st and 11th clauses. The executors named as such in the will have various powers given to them by the will, but I do not find any gift to them of the estate. Taking the 1st clause alone, there would, in my opinion, be a gift of the whole estate to the widow, subject, of course, to the legacies, and devises, pecuniary and specific, contained in the will, and subject to the performance of the purposes and objects declared in the will. But the 2nd clause, in conjunction with the 11th clause, shows, in my opinion, that the testator did not intend that his wife should take his general estate for her own benefit absolutely, with power of free disposal thereof at her discretion. On the other hand, there is no gift of the estate to the executors, and, in the absence of such gift, it would seem that, independently of the provisions of the Indian Succession Act X of 1865, as applied by Act XXI of 1870 to the wills executed, within the local limits of the ordinary civil jurisdiction of the High Courts, by Hindus after 1st September 1870, the executors of a Hindu do not, in the character merely of executors, take any estate, properly so called, in the property of the deceased; or, in other words, that the mere nomination of executors, though followed by probate, does not, of itself, confer any estate on the executor further than the estate he may have by the express words of the will, or as heir of the testator. In respect, in particular, to the premises in question here, namely, the house known as that of Makaset', there is no gift to the executors. The only power given to the executors, with reference to it, is the very limited one that, after the wife's decease, the executors are to repair 'breaks and dilapidations' out of what is referred to as 'warehouse rent and shop rent'. During the wife's life, they have, by the will, neither estate nor even power or obligation to repair. This, conjoined with the 1st clause, in my opinion, leads to the conclusion that the wife, for at least her life, was to be owner of this property, subject to the declared purpose that any impersonation of Valabh, arriving in Bombay might put up there for a period not exceeding six months at a time. If so, Rajkuver was devisee for her life at least, of the premises in question, subject to a certain trust or purpose. I do not consider that she took more than a life estate, for the reason, mainly, that after her death the executors of the will, not her heirs, were to keep the place in repair. This devise for life in trust, however, she took under the dispositions of the will itself, and quite independently of the character of executrix recognised, or given to her, by the grant of probate in June 1820 by the Recorder's Court. Her character of devisee for life in trust being, as I consider it, quite independent of the grant of probate to her, would be unaffected by the revocation of that grant by the order of this Court of 17th March 1871. Indeed, it appears that in English Law, where the same persons are appointed by the will executors and trustees, the revocation, by the testator himself, of their appointment as executors, does not revoke the devise to them as trustees: Graham v. Graham 16 Beav. 550, Carturight v. Shepheard 17 Beav. 301, and Worley v. Worley 18 Beav. 58. Now if, as I construe the will, Rajkuver was devisee of these premises for her life in trust, and there was no gift of them to the executors named in the will, the ownership in them, on her death, would devolve upon the surviving heirs of Bhugwan Kulla, subject to the obligation of allowing them to be used for the purposes intended by the testator. In other words, they would be trustees under or by reason of the will of their ancestor, though succeeding to the property in their character of heirs.
2. But the testator, in my opinion, nowhere manifests his intention that his executors as such should be trustees of these premises. Even had he appointed them trustees and executors of his will, yet the plaintiff, by obtaining a grant to himself of letters of administration cum testamento annexo and de bonis non, though he thereby became personal representative, would not become trustee of the will of the testator: Lewin on Trusts (4th edn.) ch. xi, . 14. The plaintiff might, it seems, have a ground for claiming, as one of the surviving heirs of Bhugwan Kulla, though not as mere administrator under a grant of letters by this Court, to have possession and management of the premises, admitting the trust imposed by the will, and the first and only devisee in trust having died. But the estate and trust would vest in all the surviving heirs of Bhugwan Kulla, and not in the plaintiff alone. The conveyances by the other surviving heirs to the plaintiff, though they may operate to vest in the plaintiff what in English law would be called the legal estate in the premises in question, would not transfer the trusteeship, so as to enable the plaintiff alone to sue: Burtt's Estate 1 Drew. 319.
3. The plaintiff does not, however, claim the property in question as beneficial owner. His case is that he is entitled to recover possession in his character of administrator cum testamento annexo of Bhugwan Kulla. He professes to treat as still binding and operative the declaration in Bhugwan Kulla's will that this property is to be used for the temporary shelter and accommodation of any impersonation of Valabh (or Maharaj) who may arrive here, and he professes that, if possession of the property is awarded him, he will hold the property for that purpose. But, as I have said, I am unable to understand how merely in the character of administrator cum testamento annexo, the plaintiff can maintain this suit at all.
4. Nor can he, in my opinion, for the purpose of maintaining this suit, fall back upon and revert to his right, as an heir of the testator, to recover possession of the premises, admitting them to be subject to a trust. There are, as I have said, other persons, besides himself, who also fill this character and are not parties to this suit, and the fact that they have executed conveyances to him does not, in my opinion, give him the right to sue alone, where he sues as trustee, though, perhaps, it might have done so had he been claiming a beneficial interest. In the present case, however, the plaintiff expressly disclaims any such beneficial interest.
5. Independently of all this, there is, in my opinion, another objection to the plaintiff maintaining this suit, and an objection which would have been equally strong had the surviving heirs of Bhugwan Kulla been joined as plaintiffs. In whatever way the plaintiff's position is looked at, it comes to that of one, claiming to act as trustee under a will, seeking to undo an act of one who was also trustee under the same instrument. If Rajkuver had, in her life-time, filed a suit against the present defendant, saying, 'True, I have conveyed this house to you (the defendant), and you have paid to me Rs. 13,000 as purchase-money, and have since laid out as much again upon it; but the conveyance by me was a breach of trust, and you had the means of knowing that it was so, and you must, therefore, restore me the property, and resign yourself to the loss of the purchase money and expenditure' I apprehend such a suit would not be listened to. A trustee, as between himself and one to whom he has conveyed trust property, is, I apprehend, as much concluded by his own completed act as any other vendor. So, again, I apprehend, the completed act of a former trustee, though in itself a breach of trust, is as conclusive against a successor in the trusteeship, where it is the successor who, in a suit against one claiming under and by virtue of such act, is seeking to disaffirm and annul it. We find, no doubt, cases of one trustee, who has been innocent of any breach of trust, suing a co-trustee, or the representatives of a deceased trustee, to restore property disposed of by breach of trust, or its value. There are also many cases to be found of cestuis que trust suing a trustee who has, in breach of his trust, disposed of property, and joining as defendant in such suit the party who has purchased the property with notice of the breach of trust. But in these cases the act sought to be annulled is not the act of the plaintiff or his predecessor in estate, and has no similarity to the case of a trustee seeking to disaffirm his own act, or that of a predecessor, as against the person claiming by virtue of such act. This difficulty in the plaintiff's way occurred to me early in the course of the hearing of the present case. The defendant's counsel, in stating the case of the defendant, maintained that no precedent could be found of a suit of the nature of the present one, and the plaintiff's counsel did not profess to have found any, though such precedent was called for early in the course of a hearing which lasted several days. Without saying anything as to the probable fate of this suit had it been instituted by the Advocate-General on behalf of impersonations of Valabh visiting, or who might visit Bombay, it cannot, in my opinion, be maintained in its present form.
6. Another question has been raised in defence, that, namely, of the Limitation Act IX of 1871, on which it is necessary to make some observations. The present suit was instituted on 1st May 1875, and the question is--whether the defendant, having a conveyance to himself of the property dated 4th September 1862, and possession, from that time, of such property under the conveyance, is not entitled to rely on this defence. It will be seen that more than 12 years had elapsed between the execution of the conveyance and the institution of the suit. The portion of the Act applicable to this case is, I think, Article 134 of the 2nd schedule, and regard is also to be had to Section 10 of the Act itself. By the 134th article, 12 years, reckoned from the date of the purchase, is prescribed as the period of limitation for suits 'to recover possession of immoveable property, conveyed in trust, or mortgaged, and afterwards purchased from the trustee, or mortgagee, in good faith and for value'. The words 'conveyed in trust' must, I think, be construed to include devises in trust, or, perhaps, as equivalent to the words 'vested in trust' of Section 10, though it is not in accordance with ordinary legal language to call a disposition by will a conveyance. Unless this be done, however, and it is, after all, no great violation of language, the majority of cases in which, in this country at least, immoveable property becomes vested in trustees, would be excluded from the article in question, without the case of a purchaser from such trustee being appropriately provided for elsewhere. Section 10 of the Act is as follows: 'Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his representatives, for the purpose of following in his or their hands such property, shall be barred by any length of time'. Then follows an explanation: 'a purchaser in good faith for value from a trustee is not his representative within the meaning of this section.'
7. It was contended that the defendant could not rely on the 134th article of the 2nd Schedule, nor on the exceptive explanation in Section 10 of the Act, on the ground that he was not a bona fide, purchaser, as having had notice of the will of Bhugwan Kulla, and, therefore, of the charity, by reason that Rajkuver, On the very face of the conveyance to the defendant, is described as widow and executrix. There is, however, no necessity in the present case to resort to the principle of constructive notice, and to treat the defendant, by reason of the fact of the description, in the conveyance of September 1862, of his vendor Rajkuver, as widow and executrix of Bhugwan Kulla, as having had notice of the contents of Bhugwan Kulla's will. From the evidence of the defendant himself it appears that he had actual notice, before the completion of his purchase, from the statement of Rajkuver herself, that she was selling under a 'power' from the Court; that the house had belonged to her husband, Bhugwan Kulla; and that it had been set apart for charity. But I am of opinion that the words 'good faith', in Article 134 of the 2nd schedule and in Section 10 of the Limitation Act, do not necessarily involve absence of notice. In other words, for the purpose of the Limitation Act, there may well be a purchaser bona fide and for value, who, with notice of a trust or equity, takes his purchase. No doubt, notice of a trust or equity may be an element, and an important element, in the question whether there was bona fides, or an absence of bona fides, on the part of one who purchases from a trustee or mortgagee. That mere notice of a trust or equity is not intended to preclude a purchaser for value from a trustee or mortgagee from insisting that he is a purchaser bona fide, is, I think, clear from this, that on any other construction Article 134 would be superfluous. A purchaser for value from a trustee or mortgagee, without notice of any trust or equity, is protected from the moment he has completed the purchase by conveyance and payment of purchase-money. He has no necessity to rely on any Limitation Act. Surely it is superfluous and would be absurd to provide that, whereas on a principle of law, quite independent of any Limitation Act, a purchaser for value without notice is protected and unassailable from the moment he completes his purchase, yet that after he has been in possession, for 12 years, or after the lapse of 12 years from his purchase, he may plead the Limitation Act. Though in the case in the Privy Council, Radanath Doss v. Gisborne 14 Moo Ind. Ap. 1; S.C., nomine Radanath Das v. Scott Elliott and others, 6 Ben. L.R. 530, their Lordships held that the defendants were not entitled to the benefit of the Limitation Act, as not being bona fide purchasers, and rely on the circumstances of the case of which the defendants had notice as (inter alia) excluding them from being bona fide purchasers, yet I do not find anything in the judgment inconsistent with the statement of the law to be found in Sitha Ummal v. Rungasami Iyengar 5 Mad. H.C. Rep. 385 'that the question of bona fide purchaser is one of fact, that notice of facts from which the infirmity of the vendor's title may be inferred is evidence more or less cogent of mala fides, but is not itself mala fides', and that it is open to a Judge 'to find that the mistake as to the law under which all the parties have for a long series of years been labouring was bona fide, and that despite its existence the purchase was bona fide'. I am of opinion that, under the Indian Limitation Act, absence of notice of the infirmity of the vendor's title, by reason of some trust or equity affecting the property in the vendor's hands, is not necessary in order that a purchaser for value from a trustee or mortgagee may insist on the character of bona fide purchaser for value, and this for the simple reason which I have mentioned, that a purchaser for value from a trustee or mortgagee, without notice of any trust or equity affecting the property, is protected already independently of any Limitation Act. Comparing the Indian Limitation Act with those in force in England, in reference to this matter; we find the former less liberal in the protection of a purchaser for value than the latter. In order that a purchaser from a trustee or mortgagee may claim the protection of the Indian Limitation Act, he must show, not only that he gave value, but that the purchase was bona fide, where as under Sections 2, 24, and 25, of 3 and 4 Wil. IV, c. 27, the last English Limitation Act, a purchaser for valuable consideration from a trustee or mortgagee is protected by the lapse, after the time of the conveyance to him, of the statutory period of limitation, supposing, of course, no disability to sue operating to prolong that period, and that, whether there was notice or not of any trust or equity, and whether there was bona fides or not on the part of the purchaser: Petre v. Petre 1 Dre 371.
8. These considerations would have led me to agree in the statement of the law by Norman and Campbell, JJ., in the case of Radanath Doss v. Gisborne 5 Cal. W.R. 253 Civ. Rul.), when before them, but I should have difficulty in holding that that statement of the law can be maintained to its full extent, having regard to the judgment of the Privy Council in appeal in the same case (Vide supra p. 280 note 1).
9. I may add that I have not omitted to consider the bearing on the present case of the decision of Couch, C.J. in this Court in the case of Mancharji Sorabji Chulla v. Kongseoo and Therso 6 Bom. H.C. Rep. 59. But there was no question of the Limitation Act, and the language of the Judge in the passage. 'The established doctrine of Courts of Equity is, that if a purchaser of an estate at its full value takes with notice of a trust, he is (subject to the protection afforded by the statutes of limitation) bound to the same extent and in the same manner as the person of whom he purchased', seems rather to indicate that, as a general principle, a purchaser for value, though with notice of a trust, is protected by the limitation statutes.
10. It remains, then, to consider the whole circumstances of the purchase as bearing upon the question whether the defendant can be held to be a bona fide purchaser for value. That he gave value, and full value, for the house at the time, is not disputed. Though it may be supposed that the testator, at the time he made his will, knew whether or not the objects he intended to benefit in devoting this house to the reception, on their temporary visits to Bombay, of impersonations of Valabh (commonly called Maharajas of the Valabhacharya sect), would be willing to avail themselves of the accommodation provided for them, the evidence, I think, establishes, in a sufficiently clear manner, that from the testator's death in January 1807 down to the present time no Maharaj has in fact resided there. There is evidence, which I see no reason for disbelieving, that Rajkuver in her life-time, sent invitations to Maharajas to come and live there, but that they would not come. According to the evidence of one witness, Vandravan Dayalbhai, a nephew of Rajkuver, he was sent on one occasion to invite two Maharajas, Krishnaraiji Maharaj and Gokal Ushowji Maharaj, who were on a visit to Bombay, to come and reside in the house, and they returned the polite answer, the house is in Bora Bazaar, and many Parsis live there, the place stinks, and we will not come'. It is very probable, as accounting for the reluctance of the Maharajas to live in this neighbourhood, though the testator, who may be supposed to have known their usages, had expected that they would do so, that this neighbourhood has, since the testator made his will in 1802, become more and more inhabited by Parsis, and now it seems to be almost exclusively so inhabited. The undisputed facts that no Maharaj has ever resided in the place, and that since Rajkuver's death in 1870, when, even according to the plaintiff's evidence, the provisions of Bhugwan Kulla's will in their favour must have become known, there is no trace of any attempt by or on behalf of any Maharaj to enforce the provisions of the will in this respect, go far, in my opinion, to support the evidence that it would be contrary to their usages and feelings to live in such a neighbourhood. Then, in addition to the fact, which is, I think, fairly established, that the object to which the testator had devoted this house could not be carried out, by reason of the unwillingness of the Maharajas to resort to the place, there is the fact that in 1862 the house itself, though still, to some extent at least inhabitable, for the defendant says that when he bought it a Parsi cooper lived on the ground-floor, was in a decayed and dilapidated state. The defendant, who, I may mention, gave his evidence in a very straightforward manner, and seemed to me an honest and respectable man, states that Rajkuver had mentioned to him, as one of the reasons for being obliged to sell the house, that it was in a ruinous state, and that she had received a notice in respect of that house, meaning, it may be surmised, a notice from the Municipal Commissioner that the house was in an insecure or objectionable state. He says further that, after completing the purchase, he almost entirely pulled down the old house of one storey and a loft, and re-built it in the form of a house with four storeys and a loft, and expended between Rs. 15,000 and Rs. 16,000 in such alterations and re-building. He states that Rajkuver told him the house had belonged to her husband, and had been set apart as charity as a place for the Maharajas to put up in; but that, as it was in a Parsi quarter, the Maharajas would not live there, that she told him further that the house was in a ruinous condition, and that she had received a notice in respect of it, and that she was obliged to sell it. He states further that she told him that she had no intention to appropriate the purchase-money, but would apply it to charitable purposes, to build a temple at Gogo. The defendant himself seems to have felt a difficulty on hearing that the property was charity property, but was satisfied, or, as he expressed himself, 'was glad' when Rajkuver stated that she had a 'power' from the Court. Having arranged about the bargain, the defendant went to a solicitor of this Court, of respectability and experience, and asked him to manage the completion of the purchase, telling him to make inquiries as to creditors or claims against the property and as to the vendor. The defendant, though a man of fair intelligence, says that he cannot read or write. The defendant says that he told his solicitor that the property was a charity property. By the exhibits (Nos. 5,6, and 7) it appears that notice of the intention of the defendant to purchase the property, and calling upon persons having claims on the property to come forward, was advertised in the native news paper the Samachar Durpan on 23rd June 1862, and in the Times of India on 4th July 1862, and that battaki was beaten on the same day, 4th July 1862. The defendant states that his solicitor gave him no caution against accepting the property. The solicitor himself could not be examined, as he had left Bombay for some years past without intention of returning. Now in these circumstances, of anything like actual mala fides on the part of the defendant there can, I think, be found no trace. He buys the property openly, publishing his intention to do so, calling upon persons who had any claims upon it to set them up, he consults a solicitor, and acts under his advice, gives a price for the property which it is not suggested was not an adequate one, and proceeds to expend Rs. 15,000 or Rs. 16,000 in re-building and improving the property. True, he had notice that the vendor was a trustee of the property for a charity, but he also was informed by her, and, as it appears, in accordance with the fact, that the objects of the charity would not avail themselves of it, and he was also informed, and again in accordance with the fact, that the property was in a decayed and dilapidated condition, and this was alleged by the vendor as a ground for the necessity of selling it. He was also informed, as he states, by Rajkuver that she had no intention to appropriate the purchase-money to her own purposes, but intended to apply it in charitable purposes, namely, the building of a temple at Gogo. As to this point, I may mention, that though the application of the purchase-money received from the defendant cannot be traced as having been expended in such a manner, yet the evidence sufficiently establishes that in and after the latter part of the month of September 1862 Rajkuver did expend Rs. 15,000 or Rs. 16,000 in completing a temple and dharmsala at Gogo. I do not mean to express any opinion whether this on Rajkuver's part was, or was, not a proper application of the purchase-money received from the defendant, but the fact of the representation by her to the defendant of her intention to apply the money for charity is very material with reference to the question of his bona fides. It is also to be observed that in 1862 very different notions prevailed amongst professional men, or most of them, in Bombay, with reference to the powers of a Hindu executor who had obtained probate to give a good title to a purchaser for value of immovable property belonging to the testator, to the notions which may be said to prevail now with respect to such powers, independently, at least, of Acts X of 1865 and XXI of 1870. This change has been, so far as I can trace it, due to the question having been more accurately investigated, and to attention having been paid to certain Calcutta decisions passed in comparatively recent times. An erroneous idea of the law prevailing among the profession for the time being cannot, of course, alter the law, but the fact of the prevalence of such erroneous ideas is surely very material as bearing on the bona fides of a purchaser who may have acted on the advice of members of such profession.
11. For the foregoing reasons I have arrived at the conclusion that the defendant is entitled to rely on the Limitation Act, as being a purchaser, not only for value, but bona fide, within the meaning of Article 134 of Schedule 2 and of Section 10 of the Indian Limitation Act IX of 1871.
12. There is another question worthy of consideration and that is, whether the sale of the property by Rajkuver (I say nothing of the application by her of the purchase-money) was, in the circumstances of the case, a breach of trust at all. There is no such principle of law that the alienation of charity property by the trustees is, standing by itself, a breach of trust. The Court of Chancery in many cases authorizes such alienations, and according to Lord Langdale's judgment in Attorney General v. South Sea Company 4 Beav. 453. See 458 'that which the Court might have done upon its own consideration of what would have been beneficial to the charity, might have been done by the trustees upon their own authority in the exercise of their legal powers'. Looking at the circumstances of the present case, and having regard to the principles to be found in a number of decisions of English Courts of Equity, of which I may mention Attorney General v. Warner 2 Swan. 291, Attorney General v. Pembroke Hall 2 Sim. & St. 441 1 R. & M. 751, Attorney General v. Hungerford 2 Cl. & Fin. 357 and Attorney General v. The South Sea Company 4 Bea. 453, I should have been inclined had it been necessary in the present case distinctly to decide the question, to uphold the sale by Rajkuver as being a proper and reasonable exercise of her office as trustee, and to have held it not to have been a breach of trust at all. But I say nothing as to the question whether her application of the proceeds to building or completing a temple and dharmsala at Gogo (a purpose in which the objects of the charitable intentions of Bhugwan Kulla, as declared in his will, do not appear to have any interest, and from which they do not appear to derive any benefit), can be sustained. But in my opinion the proper person to institute any suit against the estate of Rajkuver, if any suit at all be maintainable, in respect of her application of the purchase-money received from the defendant, would be the Advocate-General on behalf of the Maharajas and not the present plaintiff.
13. I may add, that, in my opinion, there is nothing in the Indian Limitation Act excluding from its benefit those asserting their right to claim under a bona fide purchase for value, by reason that those claiming against them are the objects of a charitable trust imposed on such property. It has been decided by the highest tribunal in England in the case of the President and Scholars of the College of St. Mary Magdalen, Oxford v. The Attorney General 6 H.L. Ca. 189, that the purchasers, for value of lands devoted to charity, namely, the poor of certain parishes, were entitled to rely on the English Statute of Limitations as a defence, though they purchased with notice of the charity. I can see no reason for any different conclusion with regard to the Indian Limitation Act.
14. The result, therefore, is that the 1st and 7th issues must be found for the defendant, and the suit be dismissed with costs.