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Mahomed Ibrahim Haji Gulam Saheb Londay Vs. Abdul Latif Haji Mahomed Ibrahim Jitayker - Court Judgment

LegalCrystal Citation
SubjectProperty;Trust and Societies
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 41 of 1911 and Suit No. 813 of 1910
Judge
Reported in(1912)14BOMLR987; 17Ind.Cas.689
AppellantMahomed Ibrahim Haji Gulam Saheb Londay
RespondentAbdul Latif Haji Mahomed Ibrahim Jitayker
DispositionAppeal dismissed
Excerpt:
.....1908), section 10-resulting trust.;on the 16th june 1851, f, a shaffei mahomedan lady, executed a trust-deed in the nature of a wakf whereby she settled two properties-a house and a chawla-in trust for her grand daughter m for life and thereafter on her descendants from generation to generation and in default thereof on the settlor's husband's relatives and their descendants from generation to generation in perpetuity and in default with an ultimate trust for the education and instruction of mahomedan youths. the settlor's husband was appointed the first trustee or mutawalli and provision was made in the deed for a due succession of mutawallis. m received the rents and profits till she died in 1857. the first mutawalli died in 1854 and his executors acted as mutawalli during the..........or about 1873 handed over charge of the property to the beneficiaries retaining possession of the trust-deed. in october 1875 mahomed hoosein and aminabibi executed an agreement ex. f under which they agreed to divide the rents equally according to the trust-deed. mahomed hoosein died in 1892 leaving one son mahomedally who in his turn shared the rents with aminabibi until her death in 1901 when he took the whole until he died in 1905 leaving him surviving his mother and two widows the plaintiffs in the suit of 1906. in 1903 the improvement trust were taking proceedings for the acquisition of the chawl in duncan cross lane and mahomedally went to the first defendant mahomed hoosein, the son of shaik ahmed, and the then mutawali under the trust-deed, to ask his advice and got the deed.....
Judgment:

Basil Scott, Kt., C.J.

1. The facts of this case, which it is necessary to state for our decision, are to a great extent set out by Mr. Justice Macleod very concisely in his judgment of the 1st of July in Suit 338 of 1906 as follows :-On the 16th June 1851 one Fatehbibi executed a deed in the nature of a Wakf whereby she settled two properties : (1) a house in Kazi Street, (2) a chawl at Duncan Cross Lane in trust for her grand-daughter Mariambibi for life and thereafter on her descendants from generation to generation and in default thereof on the settlor's husband's relatives and their descendants from generation to generation in perpetuity and in default with an ultimate trust for the education and instruction of Mahomedan youths. The settlor's husband was appointed first trustee or Mutawali and provision was made in the deed for a due succession of Mutawalis. Mariambibi received the rents and profits till she died in 1857. The first Mutawali, the settlor's husband, died in 1854 and his executors acted as Mutawali during the minority of his eldest son Shaik Ahmed. They continued paying the rents to Mariambibi and after her death to Mahomed Hoosein and Aminabibi, the son and daughter of Mariambibi, in equal shares. Shaik Ahmed on attaining his majority in 1867 took over charge as Mutawali and in or about 1873 handed over charge of the property to the beneficiaries retaining possession of the trust-deed. In October 1875 Mahomed Hoosein and Aminabibi executed an agreement Ex. F under which they agreed to divide the rents equally according to the trust-deed. Mahomed Hoosein died in 1892 leaving one son Mahomedally who in his turn shared the rents with Aminabibi until her death in 1901 when he took the whole until he died in 1905 leaving him surviving his mother and two widows the plaintiffs in the suit of 1906. In 1903 the Improvement Trust were taking proceedings for the acquisition of the chawl in Duncan Cross Lane and Mahomedally went to the first defendant Mahomed Hoosein, the son of Shaik Ahmed, and the then Mutawali under the trust-deed, to ask his advice and got the deed for the purpose of prosecuting his claim for compensation before the Special Collector. Ultimately he got the deed on signing Ex. I, a document recognising the trust-deed, and Mr. Pavri was instructed jointly by Mahomedally and the first defendant to proceed with the claim. The amount of the compensation-money was deposited by the Collector with the Tribunal of Appeal appointed by the City of Bombay Improvement Trust Act and remains with the Tribunal invested in Government Paper. The plaintiffs in Suit No. 338 of 1906 at the date of that suit were in possession of the house in Kazi Street and they asserted that the trust-deed was void and prayed for a declaration that they and the 2nd, 3rd, 4th, 5th and 6th defendants were entitled to the properties and that their respective shares might be ascertained. Mr. Justice Macleod was of opinion that the trust-deed was invalid on the grounds that the ultimate gift for charitable purposes was illusory and the effect and intention of the deed was to create a perpetuity in favour of the settlor's descendants, and he came to the conclusion that the persons entitled to the property would be the heirs of Fatehbibi under the resulting trust of which the Mutawali had been the trustee. He expressed this opinion as to the rights of the heirs of Fatehbibi under the mistaken impression that they were before him as parties to that suit, but he referred it to the Commissioner to ascertain which were the heirs of Fatehbibi. The Commissioner, mistaking the reference, advertised for claims to the property by heirs of Fatehbibi and this advertisement brought in the claims by members of the Haindaday family, who claimed to be heirs of Fatehbibi, and the Commissioner reported that their claim was good. The report was excepted to and the learned Judge then explained that he had not intended that the Commissioner should admit claims by persons who were not parties to the suit and that the result of the Commissioner's report must be that the parties to the suit did not comprise the heirs of Fatehbibi. The result was a deadlock, because Makba was the only person who could show any title at all to the property, and his title was, in the opinion of the Court, only that of a trustee. He was not one of the heirs of Fatehbibi. The Court ordered that the property should be handed over to him as Mutawali.

2. There was an appeal from that decision, the Haindadays, the claimants before the Commissioner, still not being parties and before the case had been argued out, a consent-decree was arrived at between Makba on the one hand and the plaintiffs and the other persons claiming through Mahomedally and Mariambibi on the other, by which it was agreed that the property should be divided in equal shares, subject to the provision of a sum sufficient to produce Rs. 5 a month to protect a certain charity mentioned in the Wakfnama in which the Advocate General was interested. That consent-decree, however, by no means terminated the proceedings, for it turned out that one of the parties to the appeal was insane; and he subsequently having recovered sanity filed this suit to set aside the consent-decree claiming also the same relief as had been claimed by the plaintiffs in Suit No. 338 of 1906 and upon the same ground, viz., that Mariambibi was entitled absolutely to the settled properties. His suit was dismissed by Mr. Justice Beaman and he has now appealed.

3. When the case first came up in the appeal Court, it became apparent that no final decision as to the rights of all possible parties in the property could be arrived at without the representation of the heirs of Fatehbibi. Accordingly, the case was adjourned in order that the heirs of Fatehbibi might be represented provided they could be bound by the proceedings in the suit up to date. Eventually they were brought on the record under cover of the Administrator General, who took out Letters of Administration to the estate of Fatehbibi, and consents to be bound by all proceedings and submits himself in all respects to the orders of the Court. All the respondents, except Makba, support the plaintiff's claim and no longer desire to take the benefit of the consent-decree. During the proceedings in appeal they have between themselves attempted to arrange a compromise with the Administrator of Fatehbibi's estate, so that they may secure the property in any event.

4. Now, it is apparent from the arguments on behalf of the various parties who have presented their cases to the Court that no one supports the Wakfnama, and all are prepared to accept the findings of Mr. Justice Macleod in Suit No. 338 and Mr. Justice Beaman in the present suit that the Wakfnama is void as being an attempt to create a perpetuity in the nature of a family settlement under the guise of a Wakfnama. The Advocate General, who represented the valid trusts, if any, was discharged by consent on an undertaking being given that the Rs. s per mensem mentioned in Clause 14 of the Wakfnama would be secured. The plaintiff and the respondents other than Makba and the Administrator of Fatehbibi's estate claim either through Mahomedally, the grandson of Mariambibi, or through Mariambibi, or her daughter Aminabibi, and contend that Mariambibi had in law an absolute estate in the settled property, because she was the first life tenant according to the terms of the Wakfnama, and the life estate according to the Mahomedan law being invalid as a gift with a condition, the estate enlarges itself into an absolute estate for the benefit of the life tenant. As an authority for this contention, reference was made to the case of Abdul Gafur v. Nizamudin ILR (1892) 17 Bom. 1, decided in this High Court and subsequently in the Privy Council, where there are statements to the effect that under the Mahomedan law a life estate is bad and would resolve itself into an absolute estate for the benefit of the donee. It is not certain that this proposition can be sustained in the case of Shaffeis to which sect the parties to this suit belong. There is some authority for the proposition that life estates are recognised among the Shaffeis and the alleged peculiarities of the Shaffei law brought to our notice by Mr. Mirza do not appear to have been considered in the case relied upon in either Court. We are, moreover, of opinion that the facts, which gave rise to the decision in Abdul Gafur v. Nizamudin ILR (1892) 17 Bom. 1, do not permit us to draw any such conclusion from that case as is contended for by the plaintiff, viz., that Mariambibi's estate must be regarded as an absolute estate. Their Lordships held that ' the intention of the settlor was not to create a series of life rents (a kind c estate which does not appear to be known to Mahomedan law but to make the fee devolve from one generation of his descendants to another without its being alienable by them or liable to be taken in execution for their debts'. In the present case the facts are that those claiming under Mariambibi obtaine possession of the property from the Mutawali Sheik Ahmed in the guise of beneficiaries under the trust-deed. They did no obtain the documents of title, because Sheikh Ahmed as Muta well retained the Wakfnama. There are passages in the Waki name which would justify the trustee in handing over to the successive life tenants, assuming the validity of the settlement, the possession of the properties, so long as he did not abdicate the position of Mutawali which had been assigned to him. If, then, Mahomed Hoosein and Aminabibi, the children of Mariambibi, obtained possession of this property by the consent of the Mutawali on the footing the Mahomed Hoosein was entitled as a life tenant under the Wakfnama, her descendants cannot be permitted to deny the person from whom the possession was claimed had a the to such possession when it was handed over to Mahomei Hoosein. That is apparent from Sections 115 and 116 of the Evidence Act ; and if Mahomed Hoosein would be bourn by the estoppel so created, all those claiming under through him would be likewise bound. It is not simply case of a beneficiary obtaining possession from a ban trustee, for Sheik Ahmed as one of the sons of the firs Mutawali Mahomed Ibrahim was entitled under the terms of Clause 6 of the Wakfnama to a contingent beneficial remainder on failure of the limitations expressed for the descendants of Mariambibi, and we cannot hold the Sheik Ahmed handed over possession of these properties to Mahomed Ibrahim except on the footing that the Wakfnami was a valid document. Reliance was placed by the appellant' counsel on the judgment of Buckley J. in re Anderson [1905] 2 Ch. 70 in which that learned Judge defined the limits of the rule laid down in Board v. Board (1873) L.R. 9 Q.B. 48 but in none of the cases cited ii his judgment were the facts such as to raise an estoppel b1 conduct such as we have in the present case. On the death 0 Mahomedally, which occurred in 1905, the limitations ii favour of the descendants of Mariambibi came to an end am the remainder for the benefit of the descendants of Mahomed Ibrahim took effect, if for the purposes of this suit as between the parties other than the Administrator of Fatehbibi's estate, the Wakfnama must be considered to be a valid document. Owing to the estoppel to which I have referred, we think the Wakfnama must be treated as valid between those parties. Therefore, as against the appellant and the other original respondents, Makba is entitled to the property under the terms of the Wakfnama both as trustee and as beneficiary. He was actually in possession of the property at the time when this suit was instituted by the plaintiff.

5. The only question remaining is as between Makba and the Administrator of Fatehbibi's estate. The Administrator of Fatehbibi can only claim under a resulting trust in favour of the settlor by reason of the invalidity of the trusts declared in the Wakfnama. Such a trust would not be valid as a trust in the strict seise in which that word is used in the Indian Trusts Act nor would it be valid under the Statute of Frauds, because it has not been declared in writing, but it would be a quasi trust of the kind described in Chap. IX, Section 84, of the Trusts Act. I do not refer to the Trusts Act as being applicable to the case because the resulting trust, if it arose at all, commenced long before 1891 when the Trusts Act came into force but the reference helps to point the distinction between declared or specific trusts and trusts arising by operation of law.

6. Now, a person claiming under a resulting trust may be barred by limitation unless the resulting trust is of such a kind as to fall within the scope of Section 10 of the Limitation Act. That section provides that 'notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property shall be barred by any length of time.' The decision of the Calcutta High Court in the case of Kherodemoney Dossee v. Doorgamoney Dossee ILR (1878) Cal. 455 is to the effect that a resulting trust in favour of the heiress of a testator upon failure through invalidity of one of the trusts declared in the will is not a trust for a specific purpose within the meaning of Section 10 of the Limitation Act. The argument of the appellant in this case is that if you have a trustee, who is created a trustee under a document vesting the property in him and that document contains a scintilla of valid trust, though the greater part is invalid, the trustee is a trustee for a specific purpose with regard to all the property, the subject-matter of the transfer. This is substantially the same argument as was advanced by Mr. Phillips in Kherodemoney's case and advanced unsuccessfully. Kherodemoney & case was considered by this Court in Vundravandas v. Cursondas ILR (1897) 21 Bom. 646. Sir Charles Farran there explained how it is that a resulting trust cannot, except in one case which he mentions (which arose in Salter v. Cavanagh (1838) 1 D. & W. 668, fall within the scope of Section 10, and he stated that his decision upon the point was supported by the case of Kherodemoney Dossee v. Doorgamoney Dossee ILR (1878) Cal. 455 and could not be substantially distinguished from it. In Churcher v. Martin (1889) 42 Ch. D. 312 Mr. Justice Kekewich discussing the question before him upon the assumption that those in possession were trustees in the proper and full sense of the term said : ' How can the possession of the trustees ensure for the benefit of him whose title was intended to be defeated by the deed which created the trust How can the grantor be their cestuique trust Because, it is urged, there is an express trust in his favour, an express trust necessarily resulting from the failure of those declared. It would suffice to reply that such a resulting trust is implied by law, and that whatever else it may be it is not an express trust; but as Salter v. Cavanagh was referred to, I may point out that the trust there spoken of as ' express ' was one inferred from the deed, and discoverable on the face of it, and not as here against the deed and due only to the fact that the deed is void.' According to the English authorities an express trust is a trust for an express purpose. According to almost all Indian authorities, a trust for a specific is a trust for a specified purpose. Reference has, however, been made, on behalf of the appellant, to a judgment of Mr. Justice Beaman in the case of Cassamally Jairajbhai v. Sir Currimbhoy Ebrahim ILR (1911) 36 Bom. 214 : 13 Bom. L.R. 717, in which that learned Judge states his opinion that for the purpose of limitation there is no distinction to be drawn between resulting trusts and trusts for specific purposes, and that the only case in which limitation can run in favour of a trustee whether by express words or by operation of law is where he is in as a trespasser and not as a valid transferee. We dissent from that view of the law. We do not agree with the learned Judge that there is any indication in the judgment of the Privy Council in Runchordas Vandrawandas v. Parvatibhai , that their Lordships dissented from the decision of the Bombay High Court in Vundravandas v. Cursondas ILR (1897) 21 Bom. 664 as to the limited scope of Section 10 of the Limitation Act. Had they considered that Section 10 could be successfully invoked by the plaintiff their decision, based upon the application of Articles of the Limitation Act relating to the period of adverse possession which, ex hypothesis would not apply, is incomprehensible. Again the remarks of the Privy Council in Balvant Rao v. Purun Mai Chaube show (as pointed out by Candy J. in Cowasji N. Pochkhanawalla v. R.D. Setna) ILR (1895) 20 Bom. 511 that the expression used by the Legislature ' for the purposes of following in his hands such property ' means for the purpose of recovering the property for the trusts in question, i.e., for the purpose for which the property was specifically vested in the trustees. Whether in the case of a resulting trust, the trust is 'express' or not, the purpose for which the property is sought to be recovered is certainly not ' specific' within the meaning of Section 10, where the purpose is directly contrary to the terms of the settlement which purported to create the trust.'

7. The result is that in our opinion the claims of Fatehbibi's heirs under a resulting trust have long been barred by the law of limitation and the respondent Makba, who at the date of the suit was in possession of the trust property, can successfully defend his possession against those heirs.

8. We dismiss the appeal with costs, that is to say, the appellant must pay the costs of the respondent Makba ; all other parties must bear their own costs. The decree should recite the joinder of the Administrator of Fatehbibi's estate and declare the decision that the claim of her heirs is barred.


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