1. This suit is filed by the plaintiff to obtain a declaration that a deed of trust dated October 29, 1895, is void and inoperative, that defendants Nos. 1 to 3 who are the present trustees and holders of the property be ordered to deliver up the property and the deed for cancellation and to render an account of their management of the property. The plaint recites that on October 29, 1895, one Abdulhusein, who was a Shia Mahomedan, executed the deed in question. That deed is annexed to the plaint. According to the plaintiff it is a deed of wakf. The purport of that deed is set out in para. 3 of the plaint. The first object was to pay the income to the settlor during his lifetime. It is contended in the plaint that as the settlor was a Shia Mahomedan the deed was therefore void. The settlor died on June 7, 1897. In para. 7 of the plaint it is stated as follows:
The plaintiff says that after the death of the said Abdulhusein Issoobbhai the trustees under the said deed of trust paid the rents of the said property to the said Jelamboo (widow of the deceased) till her death in 1934 and the said Aminaboo defendant No. 3 abovenamed and the said Kulsumboo and her two daughters Sukhraboo and Sakinaboo and one son Abdulhusein in proportion mentioned in the said deed of wakf dated October 29, 1895.
The plaint then recites different deaths and marriages resulting in the parties to the suit, other defendants Nos. 1, 2 and 7, being the present descendants of heirs of the deceased settlor. In para. 14 of the plaint it is stated as follows:--
Defendants Nos. 1, 2 and 3 have been holding the property as trustees and have never put forward any claim to the said property on their own behalf. The plaintiff says that the possession of defendants Nos. 1, 2 and 3 is permissive and the suit is within time.
Defendants Nos. 1, 2 and 3 have filed a written statement in which they denied the allegation in para. 14 of the plaint that their possession of the property was permissive. They contended that they have been in possession of the trust property as trustees under the said deed. In para. 10 of their written statement they have contended that they are entitled to retain possession of the property as trustees under the said deed, and they denied their liability to render accounts of their management of the property to the plaintiff.
2. The question of the validity of the trust depends on the question whether the deceased was a Shia Mahomedan. That fact is not admitted on the pleadings. The result is that oral evidence, perhaps considerable, will be required to be led to prove that fact. As the point of limitation raised on the pleadings appears to be clear on the authorities, I decided to try that issue first. That includes the decision of the allegation that the trustees' possession was permissive. I should state at once that the plaintiff has made that allegation in the plaint. That is denied in the written statement of defendants Nos. 1, 2 and 3 and also in the written statements of defendants Nos. 6 and 7. The plaintiff has led no evidence to show that the possession was permissive. The sixth issue is a question of fact, and as no evidence is led in support of this allegation by the plaintiff, the same must be found against him.
3. The question of limitation arises also on the averments otherwise found in the plaint. As I have pointed out para. 7 of the plaint contains an admission on the part of the plaintiff that after the death of the settlor the trustees had paid to the parties entitled to receive money under the trust-deed the income in the proportions mentioned in the deed. Reading the plaint as a whole, it is therefore clear that the settlor who was the owner received the income during his lifetime. After his death the trustees applied the income of the trust property in accordance with the trust deed and not on the footing that the heirs were entitled to the property or income. It is not stated anywhere in the plaint that this was done with the consent of the heirs. On the other hand exhibits Nos. 1 to 5 show that after the death, of the settlor the two daughters of the deceased, under the power vested in them, to appoint new trustees, have appointed fresh trustees. This is, if evidence was needed, sufficient to show that the possession of the trustees was not for and on behalf of the heirs but for and on behalf of the beneficiaries mentioned in the deed of trust. It is clear that the plaint is based on the decision of Cassamally Jairajbhai v. Sir Currimbhoy Ebrahim (1911) I.L.R. 36 Bom. 214.Beaman J. in that case pointed out that there may be two aspects of the case. The first is where the trust deed itself is wholly bad; the other, where there is a transfer of the ownership to the trustees with a direction to apply the same to beneficial uses some of which may or may not be good. The learned Judge in that case came to the conclusion that in the event of there being a resulting trust, if the claim was made by the settlor's heir's heirs no question of limitation would arise. In support of his conclusion he noticed the observations in Maulvi Saiyid Muhammad Munawwar Ali v. Razia Bibi , although he pointed out that so far as their Lordships of the Privy Council were concerned their decision was based on a finding of fact that possession was held by the lower Courts as permissive and not adverse. In my opinion that Privy Council decision which is based on a finding of fact does not help the present plaintiff.
4. The decision of Beaman J. was dissented from by the Appeal Court in Mahomed Ebrahim v. Abdul Latiff : (1912)14BOMLR987 . In Khaw Sim Tek v. Chuah Gnoh Neoh (1921) 25 Bom. L.R. 121, P.C., their Lordships of the Privy Council clearly held that to invoke the application of Section 10 of the Indian Limitation Act the property must be vested in the trustees for a specific purpose. It was held that persons claiming adversely to the trust and on the footing that the trust deed itself was bad cannot contend that the property was held by the trustees for an express purpose, they being one of such purposes. The effect of that decision on the judgment of Beaman J. further came to be considered by the Court of Appeal in Shirinbai v. Sir Navroji Vakil : (1935)37BOMLR946 . The Court there held that Khaw Sim Tek v. Chuah Gnoh Neoh definitely overruled the view of Beaman J. These decisions are binding on me. I may say that I respectfully agree with the conclusion arrived at in those decisions. In view of the Privy Council decision in Khaw Sim Tek v. Chuah Gnoh I find no adequate reason to hold that a person who claims to be an heir of the settlor and claims to be entitled to the property on the ground that the trust deed was void, could be stated to be a person claiming against a trustee holding the property for an express purpose. On the allegations in the plaint itself in this case therefore the plaintiff's claim is time-barred. He does not claim under any of the provisions of the trust deed to recover any property. His case is that the trust deed is void and as a settlor's heir's heir along with the others he is entitled to recover the property from the trustees. To such a case in my opinion Section 10 of the Indian Limitation Act has no application.
5. Therefore, the facts here are, that ever since the death of the settlor the trustees on the face of the plaint admittedly administered the property as under the trust deed and their possession is of trustees claiming to be so under the trust deed in question. They do not claim to hold the property for anyone except the beneficiaries mentioned in the trust deed and therefore the present claim of the plaintiff as the settlor's heir's heir in my opinion is clearly barred by the law of limitation. The second issue must therefore be found against him and the suit must therefore be dismissed with costs.
6. Defendants Nos. 5 and 8 have filed no written statement. In law they are therefore deemed to have admitted the statements in the plaint. They must bear their own costs of the suit.
7. The Advocate General (defendant No. 7) must get his costs from the plaintiff. If he is unable to recover his costs from the plaintiff, his costs taxed as between attorney and client should come out of the trust estate.
8. Defendant No. 6 has a pecuniary interest in this property which comes into existence only if the trust deed is set aside. Seeing that the trust deed has been in existence for so many years against her own pecuniary interest she has decided to support the trust and challenge the plaintiff's allegations. She is made a party to the suit and is therefore entitled to adopt such attitude as she considers right, irrespective of whether it is to her benefit or against it. It was argued that the Advocate General and the trustees were there to support the trust and there was no reason for her to incur costs. If a party is made a defendant it is at his option to appear and adopt an attitude as he pleases. I find nothing wrong in the attitude of defendant No. 6 in this case. As her interest is different from the plaintiff and the Advocate General, I cannot say that she should have appeared through the same solicitors and counsel. She is therefore entitled to her costs against the plaintiff.
9. As regards the trustees the plaintiff must pay their costs. The trustees applied that in the event of their costs not being recovered from the plaintiff they should be directed to be paid out of the trust estate. It was argued that they had to put the facts before the Court and submit to the orders of the Court. It it true that in the normal course a trustee supporting his title and succeeding in supporting the trust would be entitled to an order of the kind now applied for. In the present case it is however pointed out on behalf of the Advocate General that the trustees are guilty of misconduct in respect of this suit. It was pointed out that although the suit was filed in March, 1939, the trustees did not file their written statement for many months. Defendant No. 6i moved the Advocate General who called upon the trustees to define their position in clear and unequivocal terms. When driven to do so they filed their written statement in March, 1940. Even thereafter they would not make their affidavit of documents. Defendant No. 6 obtained an order against them and it was only on the service of such order that the trustees made their affidavit disclosing therein only the books of account of S. 1993 to 1995. When the attention of the Advocate General was called to this fact he called upon them to make a proper affidavit, and it was only then that they produced copies of the books of the previous years. In the course of this discussion the Advocate General ascertained that money was not applied by the trustees to charity according to the deed of trust. The Advocate General therefore called upon them to deposit the proportionate rent in a separate account. When that direction was given defendant No. 3 wrote to the Advocate General a letter dated October 27, 1940, in which he contended that the trust deed was void, that he had applied a far larger sum towards charity than charity was entitled to and he was entitled to a set off. In the concluding portion of that letter he contended that, without prejudice to his other contentions, he maintained that the trust deed was void, that defendants Nos. 1 and 2 were his nominees, that the family property was managed by him according to his pleasure and he had disbursed the income in the manner he thought he was entitled to do. He further added that he had managed that property in that manner for over last twelve years. The last statement is clearly an attempt to go back on his written statement in which the trustees contended that the properties were managed by them in accordance with the trust deed. When the suit was called on the trustees refused to raise any issues which arose on their written statement. They appeared by two counsel although they intimated that they only submitted to the orders of the Court, In discussing the question of limitation they have taken no part. Their attitude throughout has been of not upholding the trust or assist the Court in upholding the trust. They have adopted changing attitudes, and in spite of their written statement ultimately threatened to go back on the same and contended that the trust estate was not managed according to the trust deed but on the footing that the trust deed was void and the property belonged to the heirs alone. Under the circumstances I think they are not entitled to the further order for costs asked by them.