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Trustees of Sahebzadi Anwar Begum Trust Trustees of Sahebzadi Oolia Kulsum Trust Vs. Controller of Estate Duty, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberCase Referred Nos. 85, 87, 88 and 95 of 1978
Judge
Reported in[1985]153ITR761(AP)
ActsEstate Duty Act, 1953 - Sections 5; Limitation Act, 1963 - Sections 113 - Schedule - Article 113; Transfer of Property Act, 1882 - Sections 13 and 14
AppellantTrustees of Sahebzadi Anwar Begum Trust Trustees of Sahebzadi Oolia Kulsum Trust
RespondentController of Estate Duty, Hyderabad
Appellant AdvocateY. Ratnakar, Adv.
Respondent AdvocateM. Suryanarayana Murthy, Adv.
Excerpt:
direct taxation - validity of trust - section 5 of estate duty act, 1953, section 113 and article 113 of schedule to limitation act, 1963 and sections 13 and 14 of transfer of property act, 1882 - whether trust created by deceased known as sahebzadi anwar begum trust ab initio void - high court accepted contention of revenue that settlor or persons claiming under him had never asserted his right for recovery nor was there any unequivocal threat by trustees to infringe settlor's right - right of settlor to recover possession was not barred and article 113 is not attracted - properties should be deemed to have passed into hands of trustees after death of nizam - value of corpus of trust is liable to be included in principal value of estate under section 5 - trustees are therefore directed.....punnayya, j. 1. these cases are referred to by the income-tax appellate tribunal under s. 64(1) of the e.d. act. r.c. nos. 85 of 1978 and 95 of 1978 deal with the trust called sahebzadi anwar begum trust, whereas r.c. nos. 87 of 1978 and 88 of 1978 deal with the trust called sahebzadi oolia kulsum trust. r.c. no. 85 of 1978 arises out of the reference made at the instance of the trustees of sahebzadi anwer begum trust and the question referred to for the decision of this court is as follows : 'whether, on tacts and in the circumstances of the case, the trust created by the deceased on march 21, 1953, known as sahebzadi anwar begum trust is ab initio void ?' 2. r.c. no. 95 of 1978 arises out of the reference made at the instance ofthe department and the question referred to for the.....
Judgment:

Punnayya, J.

1. These cases are referred to by the Income-tax Appellate Tribunal under s. 64(1) of the E.D. Act. R.C. Nos. 85 of 1978 and 95 of 1978 deal with the Trust called Sahebzadi Anwar Begum Trust, whereas R.C. Nos. 87 of 1978 and 88 of 1978 deal with the Trust called Sahebzadi Oolia Kulsum Trust. R.C. No. 85 of 1978 arises out of the reference made at the instance of the Trustees of Sahebzadi Anwer Begum Trust and the question referred to for the decision of this court is as follows :

'Whether, on tacts and in the circumstances of the case, the trust created by the deceased on March 21, 1953, known as Sahebzadi Anwar Begum Trust is ab initio void ?'

2. R.C. No. 95 of 1978 arises out of the reference made at the instance ofthe Department and the question referred to for the decision of this court is as follows :

'Whether, on the facts and in the circumstances of the case, and on the interpretation of the trust deed, the value of the corpus of the Sahebzadi Anwar Begum Trust is liable to be included in the principal value of the estate of late Sri Osman Ali Khan Bahadur ?'

3. R.C. No. 87 of 1978 arises out of the reference made at the instance of the Trustees of Sahebzadi Oolia Kulsum Trust and the question referred to for the decision of this court is as follows :

'Whether, on the facts and in the circumstances of the case, the trust created by the deceased on March 21, 1953, known as Sahebzadi Oolia kulsum Trust is ab initio void ?'

4. R.C. No. 88 of 1978 arises out of the reference made at the instance of the Department and the question referred to for the decision of this court is as follows :

'Whether, on the facts and in the circumstances of the case, and on the interpretation of the trust deed, the value of the corpus of the Sahebzadi Oolia Kulsum Trust is liable to be included in the principle value of the estate of late Sri Osman Ali Khan Bahadur ?'

5. All the four references can be disposed of by a common judgment as question of law referred to are identical.

6. We would like to state briefly the facts leading to these references.

7. Late Sri Osman Ali Khan Bahadur created two trusts on March 21, 1953, one in favour of his daughter, Sahebzadi Oolia Kusum, and the another in favour of his daughter-in-law, Sahebzadi Anwar Begum, wife of late Nizam's second prince, Muazzam Jah. The two trusts are fairly on identical terms.

8. It is sufficient if we mention the terms of the trust created in favour of Oolia Kulsum Trust, i.e., the daughter. According to the trust deed, the jewellery settled upon trust was allowed to be worn by the said lady after her marriage or on her completing the age of 30 years, whichever is earlier, and she would be allowed to were the jewellery during her lifetime and after her heath they should be sold an invested. After her death or divorce or marriage, the trustees were directed to convert the jewellery into an income-yielding investment and the net income from the said investment was directed to be paid to her children or remoter issues of prince Muazzam Jah Bahadur from generation to generation in the ratio of two shares for the male and one share for the female. In the event of absence of the contingencies mentioned above, the income is ultimately directed to be paid to remoter issues of Prince Azam Jah Bahadur from generation to generation in the ratio to two shares for the male and one share for the female. On the death of the last survivor of the persons entitled to the new income from the fund, the income was directed to be utilised for the benefit of a holy shrine at Khum in Iran. The same pattern of benefits and succession was envisaged for the other properties also.

9. The Assistant Controller of Estate Duty examined these two trusts for the purpose of estate duty on the death of the Nizam. He took the view that the object of the trust was to confer benefit from generation to generation and, as such, it was repugnant to ss. 13 and 14 of the Transfer of Property Act and the provisions of s. 5 of the E.D. Act are attracted.

10. The Assistant Controller issued a notice to the trustees to file account of the property passing to them under s. 55 of the E.D. Act. The mere mention that it was a Wakf-alal-aulad would not make it a wakf and it was only an ordinary deed of settlement and as it offended ss. 13 and 14 of the Transfer of Property Act, it was not a valid trust and included he value of the corpus of the trust in the principal value of the estate. He directed the trustees to pay duty attributable to this part of the property included in the principle value on a proportionate basis with reference to the total duty payable and the principle value of the estate determined. As against that order, an appeal was preferred by trustees before the Appellate Controller. The Appellate Controller held that as the Wakf-alal-aulad was created, it was saved by the provisions of the Wakf Validation Act, 1913, and ss. 13 and 14 of the Transfer of Property Act are, therefore not violated. Then the Revenue preferred appeal to the Appellate Tribunal. The Appellate Tribunal confirmed the order of the Appellate Controller on the ground that though the trusts was initially void, it was acted upon for more than 12 years and hence it became valid by virtue of the title perfected by adverse possession against the settler and the heirs claiming under him and the settler provided in the deed for the maintenance and support of the members of his family and his descendants and ultimately for religious and charitable purposes and that the trust deed does not offend the rule against perpetuity and ss. 13 and 14 of the Transfer of Property Act.

11. The Appellate Tribunal dismissed the appeal. Being aggrieved with lithe said order, the Department moved an application for reference before the Tribunal accordingly framed the question for the decision of this court and made a reference, which is registered as R.C. No. 95 of 1978.

12. The trustees, who are aggrived with the finding of the Tribunal that the trust is void, filled a petition before the Appellate Tribunal for reference and the Tribunal accordingly framed the question for the decision of this court and made a reference, which is registered as R.C. No. 85 of 1978.

13. In the trust created in favour of the daughter-in-law of the Nizam, similar questions are referred to by the Department and the trustees. They are registered as R.C No. 88 of 1978 and 87 of 1978, respectively.

14. While the learned standing counsel for the Revenue contends that is the trust deed creating a trust to confer benefit from generation to generation is repugnant to ss. 13 and 14 of the Transfer of Property Act, then the trust becomes void and in such a case, the property remains as that of the settler and as such the provision of s. 5 of the E.D. Act Applies. Sri Y. V. Anjaneyulu, the learned counsel for the trustees, on the other hand, contends that the trust which is a trust-cum-Wakf-alal-aulad, is a method whereby a Mussalman can tie up his property in perpetuity for the maintenance and support of his family, children and descendants provided he makes a provision that the ultimate benefit goes to a charitable object recognized by the Muhammadan Law and the charitable purpose is for a permanent nature and such a trust is not vitiated by ss. 13 and 14 of the Transfer of Property Act as the Mussalman Wakf Validating Act, 1913, saved them from the operation of ss. 13 and 14 of the Transfer of Property Act and this enactment was followed by another enactment, the Mussalman Wakf Validating Act, 1930, the effect of which was to give the earlier enactment a retrospective effect of which was to give the earlier enactment a retrospective effect with the result that the Wakf created before March 7, 1913, also were borough within the operation of the Act of 1913.

15. The learned standing counsel for the Revenue contends that these two enactments have no application to the Hyderabad State by virtue of the Part B State Laws Act (Act 3 of 1951). The learned standing counsel for the Revenue contends that though, in order to validate the several trusts created by the Nizam, the Nizam Trusts Validation Act, 1950, was enacted by Parliament, unfortunately these two deeds to not find a place in the schedule appended to the Nizam Trusts Validation Act, 1950. He, therefore, contends that they are hit by ss. 13 and 14 of the Transfer of Property Act. Sri Y. V. Anjaneyulu contends that inasmuch as Muslim personal law permits the Wakf-alal-aulad postponing the benefit being conferred upon charity till the extinction of all his family members and his descendants and s. 2 of the Transfer of Property Act clearly provides that the provisions of the Transfer of Property Act will not apply to the trust created in perpetuity by Muslims under their personal law, the two trusts created by late Nizam valid under the law and they are not hit by ss. 13 and 14 of the Transfer of Property Act.

16. Section 13 provides that where on a transfer of property, an interest therein is created for the benefit of a person not in existence on the date of the transfer subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect unless it extends to the whole of the remaining interest of the transferor in the property. This section declares that a person disposing of property to another shall not fetter the free disposition of that property in the hands of more than one generation. The rule is quite disposition form the rule against perpetuities though their effect sometimes overlap.

17. Section 14 provides that no transfer of property can operate to create an interest which it to take effect after the lifetime of one or more persons living on the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period and to whom, if he attains full age, the interest created is to belong.

18. The rule against perpetuity is based on the principle that property cannot be tied up longer than for a life. The legislature felt is necessary to impose some restraint on the power of postponing the acquisition of the absolute interest in or dominion over property.

19. A perusal of the terms of the trusts deed clearly shows that they come under the category of bequests made in perpetuity. If that be so, they are hit by ss. 13 and 14 of the Transfer of Property Act. But s. 2 of the Transfer of Property Act expressly provides that the bequests made in perpetuity under Mohammedan law are exempted from the operation of ss. 13 and 14 of the Transfer of Property Act. But the learned standing counsel for the Revenue contends that the trusts, which have the effect of perpetual family settlement, are illusory in nature and are not valid under Mohammedan law. In support of his contention, he relies upon the decision of the Privy Council in Abdul Fate Mahomed Ishak v. Russomoy Dhur Chowdary [1894] 22 IA 76; [1895] 22 Cal 619 (PC). The learned standing counsel for the Revenue also contends that Act VI of 1913 (Mussalman Wakf Validation Act) does not apply to the Hyderabad State. In support of his contention, he relies upon a decision of the Division Bench in Salah v. Husain, AIR 1955 Hyd 229. He also contends that even if the Act applies to the Hyderabad State clauses 4(c)(ii) and (iii), 5(b)(ii) and (iii) and 6(b)(ii) and (iii) of the trusts do not come within the purview of the Act. Sri Y. V. Anjaneyulu, the learned counsel for the trustees, on the other hand, contends that the decision of the Privy Council in Abdual Fata Mahomad Ishak v. Russomoy Dhur Chowdary [1894] 22 IA 76; [1995] 22 Cal 619 (PC) had no legal effect at all, as Act VI of 1913 was enacted to nullify the effect of the above cited decision of the Privy Council.

20. It it true that the Privy Council held in Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdary [1894] 22 IA 76; [1895] 22 Cal 619 (PC), that under the Mohammedan Law, a prepetual family settlement expressly made as Wakf is not legal, merely because there is an ultimate but illusory gift to the poor. But by virtue of enactment of Mussalman Wakf Validating Act (Act VI of 1913), the effect of the above-cited decision of the Privy Council was nullified as the Act made all the perpetual family settlements, even if illusory in nature, valid. But this enactment has no application to the Hyderabad State. The question whether the Act VI of 1913 is applicable to the Hyderabad State or not was examined by a Division Bench in Salah v Husain, AIR 1955 Hyd 229. The Division Bench held that 'neither the Mussalaman Wakf Validating Act of 1913, nor the Mussalman Wakf Validation Act of 1930 has been applied to the Hyderabad State by virtue of the Part B States Laws Act and the result is that no validity could be given to the wakf in question by reason of the statutory provision the above enactments. In such a case, the Mohammedan law ought to govern a purely Mohammedan disposition of property.' As of Mussalman Wakf Validation Act 1983, has no application to the Hyderabad State, the trusts in question are not covered by the said Act Even the Nizam Trust Deeds (Validating) Act, 1950, is not helpful to the trusts in question since these trusts are not included in the schedule given thereunder. Even if the Mussalman Wakf Validation Acts apply to the Hyderabad State, clauses 4(C)(ii) and (iii), 5(b)(ii) and (iii) and 6(b)(ii) and (iii) of the trusts in question are violative of ss. 3 and 4 of the Mussalman Wakf Validation Act, 1913, inasmuch as the ultimate gift to charity was postponed not only till after the extinction of the family, children or descendants of the beneficiaries but also it is to take effect on the extinction of the remoter issue of late Oolia Kulsum Begum under the above clauses of the trust. If that be so, the trusts are invalid. Viewed from any angle, we have to hold that the trust are invalid.

21. It should, therefore, be deemed that there is no arrangement. It follows that the properties settled under the trust deed, which is void, should be reverted back to the settlor and his heirs. This legal position was made clear by the Supreme Court in CED v. Usha Kumar : [1980]121ITR735(SC) . In that case, their Lordships clearly held that if the dedication is partial, such part which is hit by the rule against perpetuities or the rule against accumulations reverts to the executant of the document or his heirs.

22. Sri Anjaneyulu, the learned counsel for the trustees, contends that if for any reason the trust deed it found to be void, then s. 27 of the Limitation Act comes into play and consequently there is extinguishment of the settlor's right in the property after the determination of the period of limitation. He contends that s. 27 applies to both movable or immovable properties. According to him, the settlor or the persons claiming under him did not take any steps to recover the trust properties from the trustees within the time prescribed under article 113 of the Limitation Act. He relies on the decision in Hem Chand v. Pearey Lal, AIR 1942 PC 64 and Shyam Charan Tiwari v. Kanhaiyalal, in support of his contention.

23. Sri Suryanarayana Murthy, the learned counsel of the Revenue, contends that the right to recovery of possession of the trust properties by the settler was not lost under article 113 of the Limitation Act (article 120 of the old Act). According to him, the settler or the persons claiming under him has not taken any steps either to recover possession of the trusts properties from the trustees or beneficiaries nor has he or the person claiming under him made a demand for the same in assertion of his or their rights in the property nor is there any denial by the trustees against such demand and hence the right to sue has not to accrue. He placed reliance upon the decision Mt. Bolo v. Mt.Koklan, AIR 1930 PC 270, Manikayala Rao v. Narasimhaswami, : [1966]1SCR628 and Venkata Subrahmanyam v. Brahmayya Sastry [1964] II An WR 130.

24. Section 27 of the Limitation Act reads as follows :

'27. Extinguishment of the right to property :- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.'

25. The principle underlying this section is of general application. This section is an exception to the well accepted rule that limitations bars only the remedy and does not extinguish the title. This section lays down the rule of substantive law by declaring the after the lapse of the period of limitation, the title ceases to exist and not merely the remedy. The section deals with extinguishment of right and applies to all kinds of property. The property mentioned in s. 27 includes movables and immovables. Section 27, therefore, alerts the owners of the property to exercise their rights to recover possession of the property within the period of limitation and if they are not vigilant enough to take steps for recovery of possession within the prescribed period, they would run the risk of forfeiture to claim the right of ownership to such property. The legal position under s. 27 of the Limitation Act makes it clear that if the right to claim possession is barred by limitation, the title itself is extinguished.

26. According to this article, the plaintiff has to file a suit for recovery of possession within 12 years when the defendant becomes adverse to him. Articles 68, 69, 70 and 71 provide the period of limitation for the suits relating to immovable property. As these articles do not apply to movable properties, article 133 which is a residuary article, governs the matter. Article 113 provides the period of limitation for three years from the date when the right to sue accrues. The expression 'right to sue accrues' mentioned in art. 113 is significant and requires consideration.

27. Right to sue within the meaning of art. 113 of the Limitation Act arises when there is demand and refusal. Admittedly, the property in question is movable property. It is, therefore, clear that the settlor or the person claiming under him should have to file a suit within three years for the recovery of the properties in dispute from the date when the right to sue accrues. The question is when does the right to sue accrues We have already stated above that the trusts are void. But merely because they are void, it cannot be said that from the date of the execution of the trust deeds, the right to sue accrues. For the right to sue to already come into existence and three should be an infringement of it or at least a serious threat for infringement of the same. The right to sue means the right to bring a particular suit with reference to which the plea of limitation is raised. Right to sue ordinarily means the right to seek relief by means of legal procedure. It implies that the person suing has a substantive and exclusive right to claim asserted by him and that there is an invasion of it or a threat of invasion. When the right to sue accrues depends to a large extent on the facts and circumstances of a particular case keeping in view the relief sought. It accrues only when a cause of action arises and for a cause of action to arise, it must be clear that there must be an assertion and an denial.

28. In Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270, one Kanhaya Lal executed a last will on May 27, 1896, and died in the year 1899, leaving behind his sole widow, Smt. Koklan, his infant son, Tarachand, and his great nephew, Mohan Lal. The properties left by Kanhayal Lal consisted of movable and immovables and they were all self-acquired but not ancestral. Tarachand died in the year 1918, leaving behind his sole widow, Mt. Bolo, and his infant son, Meher Chand. According to the terms of the will, if Tarachand, minor, dies before his mother, then the latter shall be held and considered to be the owner of the said minor's half share in the entire property. As disputes arose between the parties, the mother filed a suit. D-1 and D-2, who represent the other branch of Jul Mal, who is the brother of Kanhaya Lal, filed another suit in respect of the properties. The question that arose for consideration before their Lordships was whether the claim of the plaintiff was barred by limitation. This question is relevant for our purpose. The learned counsel for the defendants therein argued that art. 120 of the Act which corresponds to art. 113 of the new Act applies to the suit in respect of the movable properties and that when Tarachand died, the right to sue accrued to the plaintiff and the suit as regards the movable properties was, therefore, barred by limitation. The learned counsel for the plaintiff, Smt. Koklan, also submitted that art. 120 of the Limitation Act is applicable but the right to sue did not accrue until Meher Chand instituted the suit which was subsequently withdrawn. Then their Lordships examined the provisions of art. 120 and observed that there can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. Koklan's right to the property arose on the death of Tarachand, but, in the circumstance of this case, their Lordships were of the opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above was instituted. Mt. Koklan was livings as a member of a joint family consisting of herself, her infant grandson and daughter-in-law and they constituted Kanhaya Lal's branch of the family of Sultan Singh. Their Lordships, therefore, held that the suit was barred by limitation.

29. In Manikayala Rao v. Narasimhaswami, : [1966]1SCR628 , their Lordships held that art. 144 deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. It is well settled that the purchaser of coparcener's undivided interest in joint family property is not entitled to the possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share hew had purchased. His right to possession would date from the period when a specific allotment was made in his favour. It would, therefore, appear that the alienee is not entitled to the possession till a partition has been made. That being so, it is arguable that the coparceners can never be in adverse possession of the properties as against him as possession can be adverse against a person only when he is entitled to the possession.

30. In Venkata Subrahmanyam v. Brahmayya Sastry [1964] II An WR 130, Gopal Rao Ekbote J., as he then was, had to examine the scope and effect of the expression 'when the right to sue accrues' in art. 120 of the Limitation Act. In a suit on the foot of a promissory note, three points were raised. (1) That the suit on the foot a promissory note, three points were not supported by consideration. (2) That the decree in O.S. No. 205 of 1049 on the file of the District Munsif's Court was collusive and fraudulently obtained and is not binding on the plaintiff and the second defendant. (3) That the suit was not filed in time under art. 120 of the Indian Limitation Act. Here we are concerned with the third point. The learned District Munsif held that the suit was within time. On appeal, the learned subordinate judge held that the suit was not instituted within six years from the date of the accrual of the cause of action and dismissed the suit. In the second appeal, the learned single judge held that the right to sue cannot be deemed to have accrued when the decree against the assets was passed on the basis of those promissory notes. Ultimately, it was held that the interpretation to be put upon the expression 'when the right to sue accrues' to a large extent depends upon the circumstances and facts of a particular case, keeping in view the relief sought. It can, however, be stated that the right to sue accrues only when a cause of action arises and for a cause of action arise, it must be clear that the averments in a plaint, if held correct, should lead to a successful issue. There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or an least a clear and unequivocal threat to the infringement of that right by the defendant against who the suit is instituted. Analysing art. 120, the Supreme Court in Rukhmabai v. Laximinarayana, : [1960]2SCR253 , summed up the legal position thus :

'The right to sue under article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuouns may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right'.

31. Even as early as in 1910, the Bombay High Court held in Ramdas Chabildas v. Chabildas Lalloobhoy [1010] 7 IC 134, that right to sue arises when the realises is definitely denied or at least disputed in such a way as to give the plaintiff a cause of action.

32. Even the rulings on which Sri Anjaneyulu realise lay down that where a trustee has been in possession for more than 12 year under a valid trust, an action against him by the owner would be barred by limitation. In Hem Chand v. Pearey Lal, AIR 1942 PC 64, their Lordships held that where a trustee has been in possession for upwards of 12 years of property under a trust which is void under the law, an action against him by the rightful owner would be barred by limitation under the statue, the reason being that the possession of the trustee is as much adverse to the true owner as that of any trespasser. This ruling was followed by the Rajasthan High Court in Shyam Charan v. Kanhaiyalal, . These rulings deal with immovable properties. These rulings deal with immovable properties. These rulings should be appreciated in the light of the expression 'right to sue accrues'. We have already dealt with the implication of this expression. The right to sue accrues when it is definitely asserted by the plaintiff and denied by the defendant. In the absence of such assertion by the rightful owner and denial by the person in possession, the right to sue does not accrue. Admittedly, the settlor or the persons claiming under him in the case on hand did not take any steps to recover the trusts properties from the trustees. Hence, the contention of Sri Anjeneyuly that inasmuch as the settlor or the persons claiming under him did not take any steps to recover the properties from the trustees, the trustees have perfected their title by adverse possession, since the trustees happen to be in possession for more than 12 years from the date of the trust deed, which was executed in the year 1953, is unsustainable. Since this is case governed by article 113, the question as to when the right to sue accrues assumes much importance. Mere possession even for more than 12 years of the trusts properties by the trustees is not sufficient, as article 113 comes into play only from the date when the right to sue accrues. In this case, as right to sue did not accrue because there was no demand from the settlor or his heirs to take back the trust properties from the trustees, nor was there any refusal or denial by the trustees against such demand, article 113 cannot be invoked.

33. Judged from the legal position in the light of the rulings cited above, we find ourselves unable to accept the contention of the learned counsel for the accountable person that the limitation started from the date when the trust deeds, which are void, were executed. On the other hand, we accept the contention of the learned counsel for the Revenue that the settlor or the persons claiming under him had never asserted his right for recovery nor was there any unequivocal threat by the trustees to infringe the settlor's right. Hence, the right of the settlor or the persons claiming under him to recover possession was not barred and article 113 of the Limitation Act is, therefore, not attracted. If that be so, the properties should be deemed to have passed into the hands of the trustees, after the death of the Nizam and, hence, the value of the corpus of the trust is liable to be included in the principal value of the estate under s. 5 of the E.D. Act. The trustees, are therefore, directed to pay the duty attributable to the property.

34. Having regard to the above discussion and findings, our answer on each of the references is as follows :

R.C. No. 85 of 1978. - The trust created by the deceased on March 21, 1953, known as Sahebzadi Anwer Begum Trust is void ab initio and it is, therefore, answered in the affirmative, i.e., in favour of the Revenue and against the trustees-assessees.

R.C. No. 95 of 1978. - As the trust created on March 21, 1953, is void, the value of the corpus of the Sahebzadi Anwer Begum Trust is liable to be included in the principle value of the estate of Sir Osman Ali Khan Bahadur. The question is answered in the affirmative, i.e., in favour of the Revenue and against the trustees-assessees.

R.C. No. 87 of 1978. - The trust created by the deceased on March 21, 1953, known as Sahebzadi Oolio Kulsum Trusts is void ab initio and it is, therefore, answered in the affirmative, i.e., in favour of the Revenue and against the trustees-assessees.

R.C. No. 88 of 1978. - As the trust created on March 21, 1953, is void, the value of the corpus of the Sahebzadi Oolia Kulsum Trust is liable to be included in the principle value of the estate of late Sir Osman Ali Khan Bahadur. The question is answered in the affirmative, i.e., in favour of the Revenue and against the trustees-assessees.

35. There will be no order as to costs.

36. Sir Ratankar, counsel for the assessees, prays for leave to appeal to the Supreme Court. We do not certify that this is an fit case for appeal to the Supreme Court. Hence, certificate for appeal to the Supreme Court is refused.


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