1. In this suit the plaintiff prays for a declaration that a certain sale-deed of the 19th January 1904, whereby Noorbibi purported to convey certain immoveable property, situate at Ripon Road, to the defendant, is void; that the said deed might be set aside and the plaintiff declared the owner of the whole of the said property; and, further, that the defendant be ordered to reconvey the said proporty to the plaintiff and to deliver up possession. He also prays for an account of the rents of the said property since the 19th of January 1904.
2. The plaintiff is the son of one Amiruddin, who died in Bombay intestate on the 2nd December 1894, leaving him surviving as his heirs and legal representatives his widow Noorbibi and the plaintiff. Amiruddin's brother Tamuzuddin had predeceased him on the 18th day of October 1892. He also died intestate leaving as his heirs and legal representatives his widow Jenaboo and two daughters and his full brother Shaik Amiruddin. After the death of the latter, Noorbibi on behalf of herself and her minor son, the plaintiff, filed a suit, being suit No. 363 of 1895, against Jenaboo and her daughters for an account of the estate of Shaik Tumuzuddin. In that suit a consent decree was passed on the 30th March 1897, whereby it was declared that the said Noorbibi and the plaintiff as the heirs of Shaikh Amiruddin were entitled to a 5/24ths share in the estate of the said Tamuzuddin, and that in satisfaction of the said share they were entitled to a sum of Rs. 6,505. By that consent decree it was further ordered and declared that Jenaboo on behalf or herself and her daughters should convey the property belonging to the deceased Tamuzuddin situate at Ripon Road to the said Noorbibi on behalf of herself and the plaintiff, and that property was to be taken as being of the value of Rs. 4,000, and that in addition to that Noorbibi was to be paid on behalf of herself and the minor son a sum in cash of Rs. 2,505. In pursuance of that decree Jenaboo on the 20th November 1897 conveyed to Noorbibi on her own behalf and as guardian of her minor son, the plaintiff, the Ripon Road property; and by a release, dated 20th December 1897, Noorbibi acknowledged that the possession of the said Ripon Road property was duly given to her and that the paymerits directed by the decree, that is, the payment of the said sum of Rs. 2,505 had duly been made to her on her own behalf and on behalf of her minor son the plaintiff.
3. It appears that on the 19th January 1904 Noorbibi purported to convey this Ripon Road property on behalf of herself and the minor plaintiff to the defendant for the consideration of Rs. 7,000. The plaintiff claims that this conveyance is invalid and that he is entitled to be declared the sole owner of the property.
4. It is admitted on both sides that of the 5/24ths share of Tamuzuddin's estate the plaintiff was entitled to 7/8ths and Noorbibi to 1/8ths. The plaintiff contends that for the 7/8ths of the Ripon Road property he is clearly entitled to his decree. Mr. Jafferbhai contended that under the circumstances and having regard to the rules of the Mahomedan Law Noorbibi had power to convey the plaintiff's interest in the property. He admitted that if he could not establish that Noorbibi had that power under the Mahomedan Law he could not succeed in his defense. In support of his defense he cited MacNaughten's Mahomedan Law, page 64 paragraph 14, of the 5th edition. That says: 'A guardian is not at liberty to sell the immoveable property of his ward except under seven circumstances.' Only the second of those circumstances was relied upon and that runs as follows:--'Where the minor has no other property and the sale of it is absolutely necessary to his maintenance.' Without stopping to consider whether this passage correctly sets out the law upon the point, it is sufficient to say that there is in this case absolutely no evidence that the sale was in any way necessary to the maintenance of the minor. The defendant sought to establish this by suggesting that Noorbibi was entitled first to be repaid the costs of suit No. 363 of 1905, which he estimated at about Rs. 1,000 ; secondly, to be recouped for the maintenance of the plaintiff for fourteen years, which he estimated at Rs. 4,000 ; and, thirdly, to be repaid the marriage expenses of the plaintiff, which he estimated at Rs. 1,000 As to these three items I am asked to rely on conjecture as there is no evidence whatever. As to the amount of costs incurred in suit No. 363 of 1905 a consent decree was taken. No written statement was put in. There was apparently no contest. As to the maintenance of the plaintiff for fourteen years, Noorbibi was in receipt of all the rents of the Ripon Road property which has been variously estimated at from Rs. 60 to Rs. 80 per menses. The plaintiff's share of these rents would be amply sufficient for his maintenance. As to the marriage expenses of the plaintiff, they were estimated by Munshi Abdul Rehman, the next friend of the plaintiff, to be some Rs. 400 or Rs. 500. This included ornaments worth Rs. 300 which remained in the possession of Noorbibi. Under these circumstances I am of opinion that no necessity has been shown for the sale and that the plaintiff has established his right as regards the 7/8ths of the property.
5. This being so it is unnecessary to discuss the question whether the passage cited in Mr. McNaughten's work applies to the case of a de facto guardian, or whether it correctly states the law as now applied in this Court: see Baba v. Shivappa ILR (1896) 20 Bom. 199 and Moyna Bibi v. Banku Bihari Biswas ILR (1903) Cal, 478. As regards the remaining 1/8th the position is somewhat different. The defendant contends that Noorbibi being legally entitled to 1/8th of the property, the conveyance of the 19th January 1904 was effective at any rate so far as her 1/8th is concerned. He asserts in his written statement that he was a bona fide purchaser without notice. Now, as to this it is clear that he had notice of the trust. That appears clearly from the conveyance by Janaboo to Noorbibi of the 20th November 1897, which was handed over to the first defendant at the date of the conveyance. It would also appear from indemnity bond passed on the same date (that is the 19th January 1904) that the first defendant was, at that time in extreme doubt as to the validity of the conveyance of this property to him by Noorbibi. That being so, I see no reason why I should not give full weight to the express admission of the 1st defendant made in answer to a question put by his own Counsel. The question which was put to him was this: 'At the time of the execution of exhibit B were you aware that Noorbibi had appropriated to her own use a sum of Rs. 2,505 and the other property of Tamuzuddin and Amirudin?' His answer was: 'Yes. I was aware of this.' His Counsel then asked liberty to repeat the question and the question was repeated twice and fully explained to the witness. He again answered: 'Yes, I knew it.' No further questions were then asked by his Counsel, nor was the permission of the Court asked to put further questions. It is, therefore, impossible to hold that the first defendant was a bona fide purchaser without notice of the trust, and, secondly, of its breach.
6. If that is so, then it only remains to consider what is the position of a purchaser for full value who has notice of the trust and of its breach. The rule is laid down in these terms in Lewin on Trusts, 10th edition, page 1045:--'But if the alienee be a purchaser of the estate at its full value, then if he take with notice of the trust, he is bound to the same extent and in the same manner as the person of whom he purchased.' Of the authorities referred to by Mr. Lewin, it is only necessary to refer to one: Mackreth v. Symmons (1808)] 5 Ves. 350. In Dunbar v. Tredennick (1813) 2 B.& B. 319 Lord Chancellor Manners lays down the rule thus:--' Why then, what is the situation of a purchaser with notice of a fraudulent title? It certainly may be stated as a general proposition, that a purchaser with notice, is, in equity, bound to the same extent, and in the same manner, as the person from whom he purchased ; or as Lord Rosslyn states in Taylor v. Stibbert (1794) 2 Ves. 437:--' If he is a purchaser with notice, he is liable to the same equity, stands in his place, and is bound to do that which the person he represents would be bound to do by the decree'.' That same rule has been applied in the case of Mancharji Sorabji Chulla v. Kongseoo (1869) 6 Bom.. 59. Sir Richard Couch says: '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 bound to the same extent and in the same manner as the person of whom he purchased.'
7. It remains, therefore, only to consider what was the position of Noorbibi at the date of the conveyance. It appears that Noorbibi, to use the words of the defendant himself, had appropriated to her own use Rs. 2,505, paid to her under the consent decree on behalf of herself and the plaintiff. I take it, therefore, as clear having regard to the fact that her share in the whole of the Rs. 6,505 awarded to her and the plaintiff by consent decree amounted to only Rs. 813, that she having appropriated the whole of the Rs. 2505 to herself, held the whole of the Ripon Road property, which was valued at Rs. 4,000, on behalf of the plaintiff. Assuming for a moment that the value of the Ripon Road property is to be taken at Rs. 7,000, her share of that would only come to some Rs. 870 and her share of Rs. 2,505 to about Rs. 310 making Rs. 1,180 altogether. If, therefore, it is assumed that Noorbibi took this Rs. 1,180 out of the Rs. 2,505 as representing the share of the Ripon Road property, there still remains a balance of Rs. 1,425, which as between her and the plaintiff, Noorbibi was liable to make good to the trust at the date of the sale to the defendant. But the Courts in England have gone further and have held that under such circumstances the sale by a trustee of his share in joint property in breach of trust to a purchaser who takes with notice of a trust is wholly void. In the case of Boursot v. Savage (1866) 2 L.R 134. the facts were as follows:--One of the three trustees executed an assignment of leasehold property held jointly by them to a purchaser and forged the signatures of his two co-trustees, and also the requisite assent of the cestui que trust to the sale. The trustee was a solicitor and acted as such on behalf of the purchaser. It was held that the circumstances attending the transaction were sufficient to affect the purchaser with notice of some trust, if not the actual nature of it; and that he had constructive notice of the trust through the knowledge of the trustee who was his solicitor. But it was also held further that the execution by one of the three joint tenants though it was a valid assignment of the legal interest in one-third to the purchaser the actual and constructive notice of the trust disentitled . him to the beneficial interest, and a reconveyance was ordered. In his judgement Kindersley, V. C. says: 'Being of that opinion, 1 cannot hesitate to conclude that quoad Boursot and Stone (the two trustees) the deed of assignment has no operation whatever. But as Holmer (that is the fraudulent trustee) actually executed, I think the effect of his deed of assignment was to vest the legal interest of one-third of the leasehold property in the defendant. Assuming then that the legal interest in one-third of the property passed to Savage by the assignment how it is as to the beneficial interest in that one-third?' He then discusses the evidence and comes to the conclusion that the defendant had actual notice of the existence of the trust sufficient to put him upon inquiry and that as he had completed the purchase without making any inquiry, he could not maintain it against the real owners. And he closes his judgment by saying: 'It appears to me, therefore, that even on the ground of actual notice, and at all events on the ground of constructive notice, Savage (the defendant) cannot maintain a right to the beneficial interest even of the one-third which was assigned to him by Holmer.'
8. On both these grounds, it appears to me that the plaintiff is entitled to the relief he claims in respect not only of the 1/8th of the property, which admittedly belonged to him, but also in respect of the 7/8th of the property which originally belonged to Noorbibi.