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Mariyam Bivi and ors. Vs. Natharsa Rowther Trust - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberSecond Appeal Nos. 2460 of 1975 and 1464 of 1976
Judge
Reported inAIR1978Mad244
ActsIndian Registration Act, 1908 - Sections 60(2); Trusts Act, 1882 - Sections 63
AppellantMariyam Bivi and ors.
RespondentNatharsa Rowther Trust
DispositionAppeals dismissed
Excerpt:
- - this contention, as well as others, were rejected by both the courts below and the suits were decreed in favour of the trust as prayed for. the legal position is too well settled for citation of case law......appeals raise a common question as to the validity of registration of a trust deed executed by one natharsa rowther on 26-6-1920. the question arises this way. the founder's son, abdul khader, succeeding as trustee, alienated the properties of the trust as though they were his own, not disclosing that they were inalienable trust properties. after abdul khader's death, the grandson of the founder became trustee. acting on behalf of the trust, he sued the alienees for a declaration and possession, contending that the alienations were void having been made in breach of trust. the alienees resisted the suits. one of the defences raised by them was that the trust itself was invalid since the deed of trust had not been validly registered. this contention, as well as others, were rejected by.....
Judgment:

Balasubrahmanyan, J.

1. These two second appeals raise a common question as to the validity of registration of a trust deed executed by one Natharsa Rowther on 26-6-1920. The question arises this way. The founder's son, Abdul Khader, succeeding as trustee, alienated the properties of the Trust as though they were his own, not disclosing that they were inalienable trust properties. After Abdul Khader's death, the grandson of the founder became trustee. Acting on behalf of the trust, he sued the alienees for a declaration and possession, contending that the alienations were void having been made in breach of trust. The alienees resisted the suits. One of the defences raised by them was that the trust itself was invalid since the deed of trust had not been validly registered. This contention, as well as others, were rejected by both the courts below and the suits were decreed in favour of the Trust as prayed for. The alienees have now come in further appeal before this court.

2. Mr, R. N. Kothandaraman, arguing for one of the alienees, the appellants in S. A. 2460 of 1975, has repeated the contention that the registration of the original trust deed was invalid. His argument centred round a narrow point. Ha conceded that the document was duly executed by Natharsa Rowther on 26-6-1920. He conceded that it was duly presented for registration on the same day, 26-6-1920, by the executant's agent. He conceded that the agent had been duly authorised to do so under a valid power of attorney dated 25-6-1920 executed by Natharsa Rowther. Granting all these, Mr. Kothandaraman, nevertheless contended that the registration was invalid, for, according to him, Natharsa Rowther was not alive on the date of registration, which was 7-8-1920. Learned counsel said that Natharsa Rowther died within 15 days of the execution of the trust deed on his way to Mecca and during his sea voyage, and that the presentation of the document by the agent for registration and the subsequent registration were all done subsequent to the executant's death. It was accordingly urged that the registration was invalid.

3. I cannot accept the learned counsel's contention as to the death of Natharsa Rowther, in the face of the finding of both the courts below that the old man died only after he returned to Bombay after successfully completing his pilgrimage. Both courts accepted the oral evidence to this effect adduced by as many as four witnesses.

4. Mr. Kothandaraman pointed out that no certificate of death was filed by the Trust to prove that the deceased had died in Bombay after his return from Mecca. But there is no law which says that death cannot be satisfactorily proved in a court of law by oral evidence alone.

5. Mr. Kothandaraman then said that even the oral evidence adduced on behalf of the plaintiff Trust did not give the exact date of death. According to him, it was upto the trust to establish that at the time of presentation of the document the executant was very much alive and it was only later that he had died. He urged that the onus of establishing that the registration was valid in the sense that it had been done during the lifetime of the executant was on the plaintiff trust. He punctuated his argument by referring to Sections 101 and 102 of the Evidence Act.

6. I must, however, reject the above arguments. I do so, not in derogation of the rules of evidence quoted by learned counsel, but in affirmation of a special rule of evidence, appropriate in this case, found in Section 60(2) of the Indian Registration Act, 1908. Under this provision, where registration is granted by any registering authority to any instrument, such a certificate shall be admissible for the purpose of proving that the document had been duly registered in the manner provided by the Act and that the facts set out by the registering authority in the endorsements made by him in the instrument had all occurred as therein mentioned. This provision, no doubt, enacts only a rebuttable presumption as to the facts relating to the validity of registration, but the effect of the provision, all the same, is to place the burden of proof squarely and unmistakably on the party who denies registration or its validity. In the present case, the appellant's definite plea in the written statement was that Natharsa Rowther died within 16 days of the execution of the document. This was not made out at the trial by way of evidence, I have, therefore, no hesitation in rejecting the contention that the registration of the trust deed was obtained by Natharsa Rowther's agent after his death.

7. Mr. Kothandaraman then hazarded an argument that the suit was barred by limitation. This argument, in my view, cannot be mouthed at all in this case, considering that the whole basis of the suit was to recover the trust properties which had been alienated by a former trustee in breach of trust. No question of limitation at all can arise in such a suit.

8. Lastly it was contended that the appellant ought to have been paid compensation for a structure raised by him in the suit property. This contention has been adequately dealt with by both the courts below and rejected as unsound. They relied on a catena of decisions which hold that an alienee of property conveyed toy a trustee in breach of trust would not be entitled to compensation for any improvements made by him on the property. The legal position is too well settled for citation of case law. This contention must accordingly be rejected.

9. In the other second appeal i.e., S. A. 1464 of 1976 filed by another alienee of trust properties, an additional argument was urged. I was minded to regard this plea as having been addressed more for the consumption of the present Trustee of the plaintiff-trust than for serious examination by this court. Learned counsel pointed out that the particular transfer under which his client had obtained 7 cents of trust property from the previous trustee was a deed of exchange in which his client had parted with a larger extent, namely, 11 cents, not to speak of some cash consideration also in favour of the Trust. The suggestion is that this alienation by way of exchange was in no way detrimental to the Trust, but must have actually benefited it. I must reject this argument as wholly untenable. There is no evidence that a larger extent of property brought an added benefit to the Trust. Besides, I must reject the very approach behind this argument. The idea seems to be that if a trust benefits by a breach of trust committed by a trustee, then a court must accept the benefit and reject the breach. This, in my opinion, is too dangerous a doctrine of pragmatism to be countenanced in the law of trusts. To say that a trust may benefit by a breach of trust may be utilitarian, but a breach of trust is a breach of trust for all that.

It would be subversive of the fundamental basis on which this jurisprudence rests for a court to turn the Nelson eye to a breach of trust, if with the other eye it can find that the trust is not the worse off in consequence. On the contrary, the proper way the law deals with a breach of trust is to regard it as an evil in itself. I do not propose to depart from this rule in this case.

10. Both the second appeals are accordingly dismissed with costs.


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