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Ganganapalli Moorthanna Vs. Ganganapalli Chinna Ankiah and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 193 of 1970
Reported inAIR1975AP97
ActsTrusts Act, 1882 - Sections 6; Succession Act, 1925 - Sections 159; Hindu Law; Evidence Act, 1872 - Sections 115; Limitation Act, 1963 - Sections 64 and 65
AppellantGanganapalli Moorthanna
RespondentGanganapalli Chinna Ankiah and ors.
Appellant AdvocateA. Gangadhara Rao and ;C. Padmanabha Reddy, Advs.
Respondent AdvocateY.G. Krishna Murty and ;A. Krishnaiah, Advs.
DispositionAppeal dismissed
(i) trusts and societies - validity of trust - section 6 of trusts act, 1882 - 'will' created a trust and it provided that if any trustee failed to perform his duty same should be performed by resolution of elder of community or majority of them in village - uncertain number of elders do not invalidate 'will' - held, will and trust are enforceable. (ii) enforceability of trust - section 159 of succession act, 1925 - testatrix gifted some property included in trust - disposal of part of property did not made trust inoperative. (iii) dedication - hindu law - endowment invalid in beginning - title of trust rest not on will but on possession and adverse title acquired by continuous and uninterrupted possession of trustee - held, trust legal and valid. (iv) estoppel - section 115 of evidence.....sambasiva rao, j.1. the principal question that arises for decision in this appeal is whether trust created by a hindu for repairs, maintenance and worship at the tomb of a muslim saint is valid and can be enforceable. it is the important contention raised on behalf of the 1st defendant who is the appellant in the appeal. it arises out of o. s. no. 18/ 1969 on the file of the additional district judge's court, cuddapah.2. six persons filed the above suit for declaring that the schedule mentioned properties are the trust properties relating to the trust created by gangana-palli kotamma by her will dated 20th of march. 1930 and for delivery of possession of those properties to them who claimed to be the present trustees. the properties are two terraced houses in ward no. 9 of proddatur.....

Sambasiva Rao, J.

1. The principal question that arises for decision in this appeal is whether Trust created by a Hindu for repairs, maintenance and worship at the tomb of a Muslim Saint is valid and can be enforceable. It is the important contention raised on behalf of the 1st defendant who is the appellant in the appeal. It arises out of O. S. No. 18/ 1969 on the file of the Additional District Judge's Court, Cuddapah.

2. Six persons filed the above suit for declaring that the schedule mentioned properties are the trust properties relating to the Trust created by Gangana-palli Kotamma by her will dated 20th of March. 1930 and for delivery of possession of those properties to them who claimed to be the present trustees. The properties are two terraced houses in Ward No. 9 of Proddatur town.

3. The material averments in the plaint are :

By and under a will dated 20th of March. 1930 (Ex. A-3) Ganaanapalli Kotamma endowed the above said two houses and land of the extent of Acs. 12-90 cents for repairs, maintenance and worship at the tomb of a Muslim Saint by name 'Nemalladinne Hussain' near Mir-zampalli village. The trust was to come into effect after her death. She named three persons as trustees and authorised them to take possession of the properties and utilise the income therefrom for the aforesaid purposes relating to the tomb. She authorised the trustees to nominate their successors by a maiority decision. In case these three named trustees do not discharge their functions properly, the elders of 'Gandla' community of Prodda-tur (to which she belonged) or majority of them should administer the endowment. However, on 21st of June. 1930 by a gift deed. Ex. B-4 she gifted awav the land of Acs. 12-90 cents which formed Part of the endowment on the tomb to her sister Subbamma. She died in 1931. But before she died, she had handed over the two houses to one Hussain Miah, the son of the Saint who was looking after the tomb. Nothing, which appears on record, happened till 1964. The trustees named in the will of Kotamma had died, but without nominating their successors. So. on 1-11-1964 elders of the 'Gandla' Community assembled and resolved to appoint five trustees who included D-1, D-4, plaintiffs 1 and 2 and One Kondamma since deceased. Nine elders of the community signed this resolution. In the same year defendants 2 and 3 who are the sons of Hussain Miah and who were looking after the tomb after the demise of their father, attempted to alienate the two houses to one Pedda Narasimhulu. Immediately the five trustees appointed by the 'Gandla' community issued two notices dated 3-12-1964, Exts. A-5 and A-6. the former to defendants 2 and 3 and the latter to the proposed purchaser, challenging the validity of the attempt to sell the two houses. Patently on account of this, this proposed sale was not proceeded with. Evidently the five trustees continued to be in office. On 18th January, 1968 D-1 uurchased some lands. Under a deed dated 24-1-1968 he exchanged those properties with the suit houses by entering into an exchange transaction with defendants 2 and 3. Defendants 2 and 3 described themselves as being in possession of the two houses as Archakas of the tomb. The 4th defendant was an attestor on the exchange deed. This action on the part of the 1st defendant supported by the 4th defendant provoked the elders of the Gandla Community who again met on 28th of January. 1968 and resolved to remove defendants 1 and 4 from the trusteeship. The copy of the resolution is Exhibit A-13 and as many as sixteen signed the resolution. On 3rd February. 1968 there was another resolution of the members of the community. Ex. A-2 this time signed by 22 persons, appointing the pre-sent plaintiffs as trustees. After going through the necessary formalities like issuing a notice to the defendants on 15th March, 1968, the plaintiffs filed the present suit on 5-7-1968. They rested their claim on the provisions of the will.

4. There were seven defendants of whom defendants 1 and 4 were the former trustees. Defendants 2 and 3 are the sons of Hussain Miah i. e. the grandsons of the Saint who exchanged the suit properties in favour of the 1st defendant. Since the 2nd defendant died pending the suit his legal representatives were added as defendants 5 to 7.

5. The principal contest came from the 1st defendant which was supported by the third defendant. The 2nd defendant died and his legal representatives defendants 5 to 7, were absent and set ex parte. His main contentions were:--

(1) The dedication was unlawful, for a Hindu cannot dedicate property to a tomb under his personal law much less to a Muslim tomb.

(2) The trust as created by the will is void for uncertainty:

(3) The will became inoperative in view of the subsequent acts of Kotamma; and

(4) In any case the exchange was for the benefit of the tomb as the bouses had become very old and were not fetching any income, while the exchange brought income-fetching lands instead.

6. The trial Court repelled all these contentions of the defendants and upheld the claim of the plaintiffs. It held that the dedication is valid, that the will is not vague, that the exchange is not beneficial to the trust and that the 1st defendant is estopped from questioning the validity of the trust, because be had agreed to function as a trustee from 1-11-1964 and in fact issued registered notices Exs. A-5 and A-6 to defendants 2 and 3 and the then intended purchaser. In the result, it decreed the suit by declaring the plaint schedule properties as trust properties relating to the trust created by Kotamma under her will and directed the defendants to deliver possession of the properties to the plaintiffs as the present trustees. Costs were also awarded to the plaintiffs.

7. Sri A. Gangadhara Rao urees before us four points in support of the appsal brought by the 1st defendant. They are:

(1) The dedication by a Hindu to a tomb is void as it is opposed to Hindu religion.

(2) The will is very vague and so, the trust is unenforceable.

(3) The subsequent acts of Kotamma nullified the dedication and made the trust inoperative.

(4) The lower Court is wrong in thinking that the 1st defendant was estopped from questioning the validity of the trust.

8. We will do well by disposing of in the first instance points 2 and 3 taken by the learned counsel. The contention that the will is void for uncertainty is two-fold. Firstly, it is said, that the three trustees named in the will failed to nominate their successors. The will did not provide for such in eventuality. So, the will is uncertain in this respect. Secondly, the reference to the elders in her community is vague and uncertain. P. W. 1 the 1st plaintiff, himself stated that there were as many as 100 houses belonging to the Gandla community in the town of Proddatur. What was the procedure to ascertain who the elders were, This was not stated in the will. Thus, the continuance in the management of the trust contemplated by the will was rendered vague and uncertain. To illustrate this feature, Sri Gangadhara Rao points out the varying numbers of persons who signed the three resolutions. Exs. A-4, A-13 and A-2. Such an argument, in our view, ignores the basic intention of the testatrix which runs throughout the will and is manifest in every provision made therein. It is that the properties which she was bequeathing for the purpose of rendering services at the tomb should be utilised for that purpose and that they should be carefully managed. The testatrix provided for very many contingencies. In the first place, she nominated three persons who should manage the properties. She provided that the trustees should take their decisions by majority opinion. She gave details of the manner in which the income should be utilised for the purposes of the tomb. She took care to empower the three named trustees to appoint their successors, once again by a majority vote. Next follows a very crucial clause. She clearly provided that:

'In case the said three Trustees fail to perform the said duties and neglect the same and in case for some reason or other they forfeit their positions of Trusteeship, as per the resolution that may be passed by all the elders in our community living by then in Proddatur or by a majority of the members, the Pooja etc. to the Samadhi of the aforesaid Hussain Guru shall be got duly performed'. (This extract is taken from the translated copy of the will placed before us by the learned counsel for the appellant).'

It appears to be common ground that the three named trustees had died without nominating their successors. They were enjoined under the will to appoint trustees who should come into arrangement after them, by a majority decision. The function they failed and neglected to discharge and such neglect certainly comes within the four corners of the provision that the elders of the community should step in when the three named trustees failed to perform their duties and neglect them. Even if for some reason or the other the said trustees lost their positions of trusteeship, even then the elders of the community could step in. Obviously Kotamma, when she made these provisions, was anxious that the trust should be carried on whatever might be the vicissitudes of the future and so provided for all eventualities. Instead of finding any vagueness or uncertainty in these provisions, we see great clarity and de-finiteness in them. We are convinced that the will does not suffer from the defect pointed out by the learned counsel for the appellant. Eaually untenable is the other part of the argument as to the vagueness of the elders of the community. Anybody who is acquainted with the life of the village as it was in vogue in 1930 when the will was executed Would know that practically every caste had its own elders who would generally look after the interests and affairs of their community. Apart from that, even if there were no specific elders of any community, there would be some recognised elders. It should not be forgotten that Kotamma, While making this provision was creating a trust for all times to come and by the very nature of things could not be more specific, while referring to the future arrangements. She wanted that the elders in her community should step in whenever there was a failure in the proper management. She further took the precaution of saying that either all the elders or a majority of them could safeguard the interests of the trust. Such elders should belong to her community who were at the particular time living in Proddatur. Though indeterminate the number of the elders might be and it is impossible to categorically postulate for the future, the testatrix save enough indication of the constitution of the assembly which should decide the future course of events. It is not therefore, possible to hold that the will is uncertain in regard to the numbers of the elders and for that reason the trust should be held to be unenforceable, despite the testatrix demonstrated anxiety to enforce the trust in all eventualities. Indeed we find from the evidence that the elders of the community, though varying in numbers from occasion to occasion, acted under the provisions of the will and made necessary decisions to continue the management right upto 1968. They passed a resolution in 1964 appointing defendants 1 and 4. plaintiffs 1 and 2 and one Kondamma as the trustees. Then when defendants 1 and 4 betrayed the trust, they removed them by a resolution dated 28-1-1968: Ex. A-13. Immediately thereafter they, appointed on 3-2-1968 under Ex. A-2 the present plaintiffs as trustees. This practice clearly demonstrates that the elders of the community did not suffer from any uncertainty or vagueness in the provisions of the will. Indeed the 1'st defendant-appellant was one of the trustees appointed in November, 1964. From the provisions of the will it is also seen that when the elders of the community came UP on the scene, the number of the trustees which they could appoint was not limited. The freedom in regard to the numbers of the trustees was given to the elders. We have, therefore no hesitation in repelling this argument put forward on behalf of the appellant.

9. The next point we will consider is that on account of the subsequent conduct of the testatrix the will and the trust were nullified. It is pointed out that three months after the execution of the will the testatrix herself executed Exhibit B-4 on 21-6-1930 gifting away Ac-12-90 cents of land to her sister which she had. under the will made part of the trust. This was a substantial portion of the property and when that was taken away, it could only mean that Kotamma did not want the trust to be created or continued. The two houses which remained are in Proddatur and cannot by any stretch of imagination be an insignificant Part of the property. That house property remained unaffected by any other bequest by the time of the testatrix's death. As per the provisions of Section 159 of the Indian Succession Act, the legacy is deemed so far as regards that part of the stock which has ceased to exist. The bequest and thg trust would certainly be in force in regard to these houses after the death of Kotamma, since she did not make any bequest in regard to them. On the other hand, she herself handed over the two houses to Hussain Miah the son of the Saint who was then looking after the tomb. That would show that she was anxious that the two houses should be utilised for the purpose for which she had made the bequest under the will. However, Sri Gangadhara Rao seeks to utilise this circumstance of handing over the houses to Hussain Miah as a pointer towards Kotamma givine up the idea of the trust and that the three named trustees should be in management as trustees. In the result, it is said, there was no trust on her death to be carried out. Exs. A-10 to A-12 which are extracts from the Municipal Property Tax Register are relied on to show that the houses were registered in the name of Hussain Miah. A registered agreement, Ex. B-5 dated 5th May 1955 executed by a neighbour of one of the houses examined as D. W. 1 in favour of defendants 2 and 3 is also referred to for showing that defendants 2 and 3 were in enjoyment of the two houses after the death of their father. Reliance is also placed on a statement of P. W. 1 that till 1968 defendants 2 and 3 were collecting rents from the houses. In the first place, all these acts and conduct would show that the houses were clearly intended as endowments for the benefit of the tomb. In other words, the principal purpose of the trust was being carried on in respect of these two houses right upto the date of the suit. It mav be that Kotamma handed over the two houses to Hussain Miah during her lifetime. From the recitals in the will it is seen that she was suffering from tuberculosis and was apprehensive that she might die any moment on account of the dreadful disease. So, it might be that she wanted the son of the Saint to look after the houses when she was alive, and with that intention might have handed over possession to him. It should also be borne in mind that Hussain Miah. being the son of the Saint, was looking after the tomb and after him his sons, defendants 2 and 3. There is no wonder, therefore, in Kotamma entrusting Hussain Miah with the custody of the houses when she was alive. After Hussain Miah's death defendants 2 and 3 happened to look after the tomb and probably in that capacity they were also looking after the houses and collecting the rents therefrom. Even for the trustees there should be a machinery for collecting the rents and utilising them for the purpose of the trust. Hussain Miah and after him his sons defendants 2 and 3 were probablv treated as the instruments for carrying out this day-to-day affairs under the general guidance of the trustees. There is a very material statement in the evidence of D. W. 1 who is a neighbour. He says that in the registered agreement. Ex. B-5 defendants 2 and 3 and their elder brother were described as temporary trustees. The three persons named as trustees in the will were the previous trustees. He did not know who were collecting the renta prior to 1951 though he savs defendants 2 and 3 were doing that work since 1951. The trustees named in the will were visiting item No. 1 now and then. When one Narasimhulu tried to purchase item No. 1 from defendants 2 and 3. there was tom tom in the town warning intending purchasers not to purchase the same. This statement clearlv establishes that the trustees named by Kotamma did enter upon office and discharge their functions at least until the execution of Ex. B-5 in 1955. Perhaps by that time the three trustees died and so defendants 2 and 3 and their elder brother were described as temporary trustees. This adjective (Temporary) is very meaningful which can only indicate that thev were not the actual trustees. On the other hand, the 1st defendant examined as D. W. 2 states that the named trustees never manased the suit houses. This should be rejected summarilv because it is contrary to the evidence of his own witness D. W. 1. He admits that alone with others he issued Ex. A-6 notice to Narasimhulu who intended to purchase item No. 1 from defendants 2 and 3. He admits that he signed Ex. A-6 after reading and that its contents are correct. His statement that with the permission of the original trustees defendants Nos. 2 and 3 were collecting rents and rendering services destroy all his argument in this behalf. This admission on his part removes all doubt, if any and Droves that the trust Came into operation after the death oi Kotamma. The named trustees entered upon their duties and defendants 2 and 3 were merely acting as their agents and rendering service. All this clearly demonstrates that the subsequent events instead of nullifying the will and the trust, support them and establish the fact that the trust, as contemplated by Kotamma. was carried on. The further fact that the 1st defendant agreed to be a trustee as per the resolution of the elders of the community dated 1-11-1964 would support this conclusion. Therefore, this argument on behalf of the appellant is totally devoid of force.

10. Now coming to the principal contention that the dedication by a Hindu to a Muslim tomb is unlawful for the reason that under the Hindu Law a person following that religion cannot dedicate property to a tomb, the legal position is now settled by the decisions of the Supreme Court in Saraswatbi Ammal v. Rajagopal Ammal, 1954 SCR 277 corresponding to : [1954]1SCR277 and Sundara Kothanar v. Sellam Pillai. (1969) 1 SCWR 669. The Supreme Court held that a perpetual endowment of Property for the purpose of samadhi Kainkaryam i. e. worship of and at the samadhi (tomb) of a person was not valid under the Hindu Law. In view of this categorical declaration of the law by the Supreme Court, it is not necessary to refer to the other decisions on the point. Thus, if we go by this legal principle alone there is no doubt that a Hindu cannot make an endowment for the worship at a tomb. Reliance is placed on a passage of the learned author Ameer Ali at Dage 200 of volume 1 of his book on Mohamedan Law (Fourth Edition) which says:

'any person of whatever creed may create a wakf, but the law requires that the obiect for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential element in the constitution of a Wakf, if the obiect for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator, it would not be valid.'

11. Learned counsel for the appellant relies on Mundaria v. Shvam Sundar, : AIR1963Pat98 and Kassimiah Charities v. M. S. W. Board, : AIR1964Mad18 which accepted this statement of the leeal position by Ameer Ali. Sri Y. G. Krishna Murthy for the respondents, however, argues that there is no support for Ameer Ali's proposition and it is not rested on any decided cases or religious treatises. He points out that neither in Mundaria v. Shyam Sundar, : AIR1963Pat98 nor in Kassimiah Charities v. M. S. W. Board, : AIR1964Mad18 the laying down of this proposition was necessary and as far as these decisions are concerned, these observations were mere obiter dicta. We should, however follow the law laid down by the Supreme Court according to which a trust created by Kotamma in favour of a tomb for its maintenance and for worship thereat ia not legal

12. But the position does not rest there. Even if it was not valid when it was constituted, the fact remains that it was enforced and carried on right upto the date of the suit, that is to say the trust was in force and in existence as on the date of the suit. What is more, the appellant before us was one of the trustees appointed by the Community of Kotamma by a resolution dated 1-11-1964. He not only agreed to become a trustee, but he discharged some functions in that capacity. He along with the other trustees, appointed on 1-11-1964 issued Exhibits A-5 and A-6 notices on 3-12-1964 to defendants 2 and 3 on the one hand and to the intending purchaser on the other, when a sale of one of the houses was proposed to be held by defendants 2 and 3. Thereupon the sale was dropped Evidently till 28th of January. 1968 the 1st defendant and the other four trustees appointed by the elders continued in office. On 24th January. 1968 the 1st defendant exchanged some lands of his which he had purchased under Ex. B-2 on 18-1-1968 with the suit properties from defendants 2 and 3. It is very important to note that in that exchange deed the two suit houses were described as betes in possession of defendants 2 and 3 in their capacity as Archakas. The 4th defendant was an attestor on the exchange deed. This description would clearly show that defendants 2 and 3 had no other capacity than that of Archakas and that there were other trustees. By virtue of this exchange, the 1st defendant derived a benefit by getting the suit properties which are situated in the Municipal town of Proddatur. When he. in collaboration with the 4th defendant, was found to be acting contrary to the interests of the trust, he was removed from the office by the elders by resolution dated 28-1-1968. Because of this conduct, the lower Court held that the 1st defendant was estopped from setting up the present defence. It is in this connection Sri Gandadhara Rao raises the 4th contention that this opinion of the trial Court as to estoppel is wrong. He argues reiving on Kartar Singh v. Daval Das, AIR 1939 PC 201: Kalidas v. State of Bombay. : 1955CriLJ193 and Muthuswami v. Loganatha, AIR 1935 Mad 404 that there cannot be any estoppel against law. That is a well established rule of law and there is no gainsaying anything against It. But we fail to sea in this case how it is tantamount to pleading estoppel against law. Learned Counsel suggests that the difficulty arose on account of the 1st defendant under-standing the terms of the trust deed and its legal Implication. If he understood the trust deed and its legal effect in a particular way and acted on the basis of that understanding, he cannot be later prevented by savins that his understanding of the legal position was wrong. This reasonning is wholly untenable in our view. The 1st defendant never under-stood the terms in the will and the nature of the trust as being void and unenforceable. On the other hand, as the circumstances above mentioned make it plain, he and all others who were concerned with the properties thought that they were constituted as a trust for the benefit of the tomb and acted accordingly. He agreed to be a trustee till 1968 and prevented the intended sale by defendants 2 and 3 by issuing notices. Later he committed volte-face and obviously with the intention of gaining two valuable houses in the Municipal town entered into an exchange deed thereby getting at the trust properties. When it is argued that he cannot now turn round and say that there was no valid trust, what is pleaded is not an estoppel against law, but against his conduct then and now. Therefore, we are in agreement that the 1st defendant is stopped from raisins the present contention and hold the 4th point also against the appellant.

13. However, this does not completely solve the Problem. The respondents have brought the suit claiming the enforcement of the trust and for posses-tion of the trust properties and so it is for them to show that a trust in fact and in law existed as on the date of the suit, The plea of estoppel would help them to defeat the 1st defendant only when they establish this preliminary and basic position. What has been discussed above shows that though the endowments or trust created by Kotamma under her will was invalid under her personal law, nevertheless, it was acted upon right uoto the date of the suit. Each set of trustees managed the two houses and defendants 2 and 3 were collecting rents onlv on behalf of the trustees as admitted by the 1st defendant himself as D. W. 2. The conclusion is, therefore irresistible that the trustees constituted as per the provi-tions of the will were in legal possession of the two houses from 1931 when Kotamma died right upto 1968 and that possession was on behalf of the trust. They were in possession for nearly 37 or 38 years on behalf of the trust and in their capacity as trustees to the exclusion of the heirs of Kotamma and, everybody else that is to say. the heirs of Kotamma cannot now claim the properties tnd the trustees have acauired a possessory title against any other possible claimant to the properties. This possessory title is that of the trust though the endowment, to start with, was invalid and void. In other words, the title of the trust now rests not so much on the provisions of the will, but on the possessory and adverse title acquired for its benefit by continuous and uninterrupted possession its trustees have acquired for over the statutory period. Thus as, on the date of the suit the trust was legal and valid, whatever might have been its infirmity to start with. No person, much less the 1st defendant who had been a trustee, can now question the legality of the ownership of the trust of these two houses.

14. We are supported in this view by observations of several decisions. We will start with two Privy Council decisions. In Srinivasa Moorthv v. Venkata Varada Aivangar, (1911) ILR 34 Mad 257 (PC) the son of the deceased was the executor and trustee named under the will and so also the sole residuary legatee. He obtained probate under the will and took upon himself the management of the estate and all its assets. For some years he acted in execution of the trust of the will. When he was called upon to account lor the moneys of the trust, he asserted that the will was wholly inoperative and that the entire estate was joint family property devolved on him by right of survivorship. The Priw Council opined that to such a contention it would be a sufficient answer to say that no person who had accepted the position of trustee and had admired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself. The other Privy Council decision in Hem Chand v. Pearey Lal. 69 Ind APP 137 = (AIR 1942 PC 64). In that case a charitable trust was created under a will and it was void for uncertainty. It was. however, found that the executor of the will had himself by his conduct dedicated the property to the charitv and that after 12 years adverse possession the title to it had vested in the charity. It is thus clear from the decision of the Privy Council that though the trust was initially void when it was acted upon for more than 12 years the property would vest in the charity by virtue of the title that arises out of adverse possession. Relying on these Priw Council decisions a Division Bench of the Bombay High Court consisting of Beaumont, C. J. and Kama. J. fas he then was) held in Fazlhussein v. Mahommad Ally, AIR 1943 Bom 366 that even though the wakf was void because of reservation of a life interest in favour of the settlor, the trustees in possession under that void trust would acquire a good title by adverse possession as against the settlor and those claiming under him. The trustees acquire a possessory title against those claiming under the trust resulting from the invalidity of the charitable trust since a claim under such resulting trust is a claim adverse to the deed. The learned Judges further held that a trustee who enters Into possession o property ostensibly on trust subsequently ascertained to be void cannot however retain the property for himself when the claim of the settlor and his heirs has become statute-barred. A trustee is not entitled, when asked to account by his beneficiaries, to challenge the trust under which he holds until he has obtained a proper discharge from the trust with which he has clothed himself. It is immaterial whether the trustee challenges the settlement on the ground that the settlor did not possess the property which he purported to settle, or oa the ground that the settlor did not possess the power to create a settlement which he purported to create. Following the above Bombay decision a Division Bench of the Punjab High Court held in Balkishan Das v. Parameswari Dass, that :

'There is nothing unusual in the properties of the shebait being held by the trustee, for the benefit of the institution. Where the shebait had agreed to his powers being trimmed by the managing committee consisting of the trustees a person who had acted as a trustee for many years cannot subsequently seek to unsettle the position which had obtained for manv years during which many and varied acts had been done by the trustee as the president of the trust, by saying that the trust was invalid from its inception, and its terms were unenforceable and that the shebait was not competent to create the trust. A trustee who cannot challenge the validity of a trust in a suit brought by a beneficiary should not be allowed to do so in an action brought by the co-trustees for accounts.'

A Division Bench of our own High Court consisting of Gopalrao Ekbote. J. (as he then was) and A. V. Krishna Rao. J. were considering a similar case in L. P A. No. 5 of 1970. D/- 10-9-1971 (Andh Pra) where a Hindu made a grant for the performance of Moharrum festival. Gooal Rao Ekhote, J. speaking for the Bench dealing with this question observed:--

'Even if it is assumed that such a purpose is unlawful according to the Hindu tenets, even then the wakf has become perfectly valid because alter the death of the dedicator, his heirs continued the wakf property to be used for that purpose. Even though the wakf originally may be invalid, but because it was not questioned by the successors of the dedicators, nay they continued it. and since the property was used for that purpose. the wakf became valid by user.' These decisions fully support the view we have expressed above. It is quite clear from the above consideration that there was a valid trust to the inception of the suit in respect of the suit properties in favour of the tomb and that the 1st defendant is estopped from questioning its validity.

15. Before we close our consideration of the appeal, we will refer to an incidental aspect which arises out of certain observations in AIR 1943 Bom 366 and : [1954]1SCR277 While holding that the trustees had held the property on the trusts of the settlement, Beaumont. C. J. observed in the former case that:

'Now, those trusts are not invalid on any considerations of public policy. If they were, I agree that the second ground might present much greater difficulty.'

In the latter case, the Supreme Court observed that :

'The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widelv enlarged consistently with public policy and needs of modern society.'

We do not think that these observations would in any manner come in the way of trustees acquiring adverse possession for the trust. The purposes of the trust in this case can by no means be said to be opposed to public policy. A Hindu's endowment on a Muslim tomb is, on the other hand, a positive contribution to the implementation of one of the basic foundations of the Constitution of India, namely secularism and amity amongst different religious denominations. In the light of what we have found above, it is clear that the plaintiffs are entitled- for the declaration they have sought and for possession of the plaint schedule properties. We accordingly dismiss the appeal affirm the decision of the trial Court and decree the suit with costs of this appeal.

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