B.C. Ray, J.
1. This appeal at the instance of the plaintiff No. 2 is against the judgment and decree dated May 13, 1963 passed in Title Appeal No. 994 of 1963 by Additional District Judge, 7th Court, Alipore modifying the judgment and decree dated June 27, 1962 passed by Subordinate Judge, 7th Court, Alipore in Title Suit No. 66 of 1957 and it arises out of a suit for declaration of title and recovery of possession of the suit land or in the alternative for cancellation of the kobala standing in the name of the defendant.
2. The salient facts of the case are that the plaintiff's father Mahadeb Banerjee and the plaintiff No. 1 Durga Charan Banerji, brother of the plaintiff No. 2, arranged the marriage of plaintiff No. 2 with the defendant's son Prodyote Kumar Ghosal. On the demand of the defendant the plaintiff's father had to give a sum of Rs. 4,000 as dowry to the defendant who gave thirty Bharis of gold ornaments to plaintiff No. 2 prepared out of the said money. The plaintiff's father also gave Rs. 400 in kind at the time of marriage. Immediately before the marriage the defendant on coming to know that the plaintiff's father Mahadeb Banerjee who was a broker was shortly going to acquire the disputed plot of land at a nominal price from one Dr. Biseswar Dutta in appreciation of his services rendered to him suggested to the plaintiff's father for making a gift of the said land to plaintiff No. 2 and the defendant promised to construct a dwelling house thereon at his own cost for the benefit of the plaintiff No. 2. The plaintiff's father agreed to give the said land to plaintiff No. 2 as soon as the same would be available to him. The marriage of the plaintiff No. 2 with the son of the defendant was solemnised on Nov. 28, 1947. Immediately after marriage the defendant wanted to have the said land transferred and he put pressure on the plaintiff No. 2 to have the transfer of the land made by her father soon. The plaintiff No. 2 communicated the said proposal to her father and brother, the plaintiff No. 1. The plaintiff's father Mahadeb had to accept the proposal of the defendant on the importunities of the plaintiff No. 2. The defendant suggested that the conveyance of the suit land should be taken directly in his name from Dr. Biseswar Dutta. But Dr. Biseswar Dutta did not agree to it. Thereupon Mahadeb Banerjee got the conveyance executed by Dr. Dutta in the name of plaintiff No. 1 Durga Charan on March 22, 1948. On the suggestion of the defendant to execute a kobala in respect of the suit land in his name instead of making a deed of gift in favour of his newly married daughter-in-law, plaintiff No. 2 the plaintiff No. 1 and his father eventually yielded to his proposal. On April 24, 1948, the plaintiff No. 1 executed a deed of sale without any consideration in the name of the defendant for the benefit and advancement of his sister, the plaintiff No. 2, Padmarani. It has been stated that the house standing on the said land was constructed by the defendant not within his own money but with the dowry money of Rs. 4,000 received by the defendant from the plaintiff's father for purchase of ornaments for the plaintiff No. 2. The defendant, it has been pleaded, had no means or source of income to provide the money required for construction of the house on the suit land. The conveyance in question is for the benefit and advancement of the plaintiff No. 2 and structures standing thereon being constructed with her money she is entitled to the same. This suit had been filed for declaration of the plaintiff's title to the suit property and for recovery of possession. There is also an alternative prayer for cancellation of the kobala as the same was vitiated by fraud, coercion and undue influence.
3. The defendant contested the claim of the plaintiff denying the allegations that the deed of sale was without consideration and the same was made in his name for the benefit of plaintiff No. 2. It has been stated that the said land was purchased by the defendant from the plaintiff No. 1 on payment of consideration money mentioned therein and as such the plaintiffs could not get any relief in the suit. It has also been contended that the suit being one for cancellation of the deed was barred by limitation being filed beyond the prescribed period. It was also pleaded that this suit was filed as a counter blast to the divorce suit which was decreed.
4. On June 27, 1962, the Subordinate Judge, 7th Court, Alipore, after hearing the parties held that the suit was one for declaration of title and recovery of possession and the plaintiff could bring such a suit without praying for cancellation of the instrument. The suit was not barred as Article 91 of Limitation Act did not apply. The plaintiffs also at the time of hearing abandoned the alternative prayer for cancellation of deed. It was also held that the land-in-suit was given to plaintiff No. 2 as dowry of her marriage and she was the real owner thereof though the kobala stood in the name of the defendant. It was further held that construction on the suit land was raised with the money of the plaintiff No. 2 and the same, therefore, belonged to her. The defendant was held to be a trustee for the plaintiff No. 2 as the land was given to her by a kobala in the name of the defendant and as such the improvements made thereon would enure to the benefit of the plain-tiff No. 2. The suit was, therefore, decreed with costs.
5. Against the said judgment and decree the defendant filed an appeal being Title Appeal No. 994 of 1963.
6. On May 13, 1963, the Additional District Judge, 7th Court, Alipore held that Article 91 of Indian Limitation Act did not apply to the suit as the prayer for cancellation of kobala was abandoned and the suit was not barred by limitation. By the kobala in question the disputed land was given to the plaintiff No. 2 Padmarani for her benefit and advancement, though in the name of her father-in-law, the defendant. The plaintiff No. 2 was the beneficial owner of the said land and she was entitled to recover the same from the trustee-defendant. The plaintiff No. 2 having failed to prove the construction of the house with her money there was no good reason not to accept the defendant's story of construction of the house with his own money as evidence was led in support of that story. It was held that the defendant had bona fide dealt with the property as his own and he was entitled to compensation under Section 51 of T. P. Act. The defendant as a trustee was entitled to reimbursement of expenses incurred by him for construction of the house on the trust property held by him for plaintiff No. 2 under Section 32 of the Indian Trusts Act. The appeal was allowed and the judgment and decree of the court below was accordingly modified. The plaintiff No. 2 would get possession of the suit land with structures thereon not earlier than six months from the date of deposit of Rs. 6,250 for payment to defendant who was entitled to reimbursement of the amount for the house standing thereon. The defendant shall give vacant possession of suit property on that deposit being made after the prescribed period failing which plaintiff No. 2 will be entitled to execute the decree.
7. It is against this judgment and decree the plaintiff No. 2 has preferred this appeal. A cross-objection has been filed by the defendant-respondent.
8. Mr. Ranjit Kumar Banerjee, learned Advocate appearing for the appellant, has advanced three-fold submissions. The first dimension of his submission is that the defendant being a trustee cannot take benefit of a breach of trust. The defendant as a trustee for the plaintiff No. 2 cannot set up his own title to the suit property adversely against the plaintiff No. 2. The constructions made by the defendant knowingly that plaintiff is the beneficial owner of the land-in-suit will enure to the benefit of plaintiff No. 2 and the defendant cannot claim any compensation for the structures made thereon knowing fully that he is the trustee. Mr. Banerjee has referred to the decisions reported in : 1SCR773 and AIR 1949 PC 61.
9. The second dimension of Mr. Banerjee's submission is that if a trustee bona fide believing the land to be his property spends money on erecting structures thereon onus is upon him to prove it in order to be eligible to get compensation for the costs incurred by him for the structures. The decisions in 44 Gal WN 247: (AIR 1940 Cal 356) and 49 Ind App 286 : (AIR 1922 PC 292) have been mentioned in support of his submission.
10. The third dimension of Mr. Banerjee's submission is that the suit is not barred by limitation and Article 91 of Indian Limitation Act does not apply to this suit.
11. Mr. Padma Bindoo Chatterjee, learned Advocate for the respondent has submitted that the defendant purchased the suit (property by kobala (Ext. A) on payment of the consideration money mentioned in the said deed and as such the finding of the court of appeal below that the land-in-suit was given to the plaintiff No. 2 for her benefit and advancement is wholly wrong and so it is liable to be set aside. Mr. Chatterjee has further submitted that the defendant after his purchase of the suit property in exercise of his bona fide claim of right of ownership to the same constructed the house thereon at his own cost and he has been possessing the same for a long time without any objection from the plaintiff No. 2. The plaintiff No. 2 cannot get a decree for recovery of possession without payment of compensation for the costs for construction of the house. Mr. Chatterjee has also submitted that the plaintiffs failed to prove that the said structures were made by the defendant with the dowry money given by the plaintiff's father as has been held by the court of appeal below and as such this appeal is liable to be dismissed.
12. Admittedly the plaintiff No. 2 Padmarani, sister of plaintiff No. 1 was married to Prodyote Kumar Ghosal, son of the defendant on 12th Agrahayan, 1354 B. S. i.e. Nov. 28, 1947. The land-in-suit admittedly belongs to plaintiffs father Mahadeb Banerjee who got the same from Dr. Biseswar Dutta in consideration of his service as a broker rendered to the latter by a kobala (Ext. 1) in the name of his son, the plaintiff No. 1. It has also been proved that at the instance of the defendant the plaintiff's father paid a sum of Rs. 4,000 as dowry to the defendant and the defendant prepared gold ornaments weighing thirty bharies and gave the same to her daughter-in-law, the plaintiff No. 2 at the time of marriage. The courts below on a consideration and appraisement of the oral and documentary evidence have concurrently held that the land-in-suit was given to the plaintiff No. 2 Padmarani for her benefit and advancement by the plaintiff's father Mahadeb Banerjee though the kobala (Ext. A) was made in the name of her father-in-law, the defendant and no consideration passed thereon. The defendant is holding the land as a trustee for the plaintiff No. 2 and it is a case of constructive or resulting trust in favour of the real and beneficial owner, the plaintiff No. 2 under Section 80 of Indian Trusts Act. The above findings are findings of fact concurrently arrived at by the courts below and as such the same are final. The said findings cannot be interfered with by this Court in second appeal.
13. It is not disputed that the defendant has constructed a house on the suit land. Now the question that comes up for consideration is whether the house belongs to the defendant and the defendant is entitled to be reimbursed for the sum spent for construction of house by the plaintiff No. 2 in order to enable her to get a decree for recovery of possession of the suit land and the house standing thereon. The defendant who as a trustee has been holding the suit land for and on behalf of the real and beneficial owner, the plaintiff No. 2, Padmarani Ghosal has set up title for himself in the disputed land in derogation of the trust Under the provisions of Section 14 of the Indian Trusts Act a trustee is not permitted to invoke formal title is himself in respect of the trust property adversely against the interest of the beneficiary. In Halsbury's Laws of England, 3rd Edition, Vol. 38 P. 2968 Article 1677 it has been observed that a trustee must not set up or abet an adverse title or claim of another person against his cestui que trust or act in a manner inconsistent with his duty as a trustee. It is well settled that a trustee cannot take benefit of a breach of trust. Lewen in his Treatise on The Law of Trusts 14th Edition, P. 233 has observed: The trustee, wherever the trust property may be placed must always be careful not to amalgamate it with his own, for, if he does, the cestui que trust will be held entitled to every portion of the blended property which the trustee cannot prove to be his own. In AIR 1949 PC 61, Yenkenna v. Achanna, their Lordships of the Privy Council have held that a person knowing that a certain piece of land has been transferred to him as a trustee cannot be allowed to allege an absolute beneficial title to it regardless of the trust. This would amount to fraud. The Privy Council in AIR 1922 PC 325, Srinivasa Chariar v. Evalappa Mudaliar have observed that where the discoverable orgin of property shows it to be trust property the onus of establishing that it must have illegitimately come into the trustee's own right does not rest upon the beneficiaries. Upon the contrary, the onus is heavily upon the trustee to show by the clearest and most unimpeachable evidence the legitimacy of his personal acquisition. This observation has been relied upon by the Supreme Court in the decision in : 1SCR773 , Narayan Bhagwantrao Gosavi Balajiwala v. Gopal Vinayak Gosavi.
14. In this case it has been concurrently held that the defendant is in the position of a trustee holding the property for the plaintiff No. 2 who is the real and beneficial owner of the same. The onus is upon the defendant to prove by cogent evidence that he constructed the house on the suit land with his own money bona fide believing the same to be his property. The court of appeal below erred in law in holding that the trial court misplaced the onus on the defendant and in reversing the finding of the trial court that the defendant could not prove that he had funds to construct the house on the suit land. The court of appeal below is also wrong in holding that as the plaintiff No. 2 claims ownership of that house the onus lay heavily upon the plaintiff No. 2 to prove that the structure was built by the defendant with the sum of Rs. 4,000/- received as dowry money from plaintiff's father Mahadeb and nothing had been spent out of his own in making the construction and as the plaintiff No. 2 failed to discharge that onus so it was held that the defendant's story of making the construction with his own money should be accepted. On the contrary the onus lies heavily on the defendant to prove that he made the structures with his own money and not with the dowry money received by him from the father of the plaintiff No. 2. The learned Subordinate Judge has held on a consideration of all the evidences on record that the defendant could not prove that he had the necessary fund or had any source of money to make the constructions on the suit-land and as such it has been held that the plaintiff No. 2 is entitled to the land in suit with structures thereon. We have considered the evidences and we do not find anything to differ from the said finding. Moreover, the suit land having been given to the plaintiff no. 2 for her benefit and advancement by her father Mohadeb by the kobala (Ext. A) which is without any consideration, it cannot be said that the defendant made the structure on the disputed land under a bona fide claim of title to the land. Section 51 of the T. P. Act has no application to this case. Reference may be made in this connection to a Bench decision of this Court in 44 Cal WN 247 : (AIR 1940 Cal 356), K.K. Das v. Sm. Amina Khatun where it has been held that where a person spent money on structures knowing that the land was not his could not claim compensation for the structures nor had he the right to remove the same. But if he had spent money in the bona fide belief that he was the owner of the land or had the right to build he could have claimed compensation or the right to remove the structures. In : 3SCR283 , R.S. Maddanappa v. Chandramma it has been observed by their Lordships of the Supreme Court that no man who, knowing fully well that he has no title to the property, spends money on improving it can be permitted to deprive the original owner of the right to possession of the property except upon the payment for the improvements which were not effected with the consent of that person.
15. Section 32 of Trusts Act which provides that a trustee is entitled to be reimbursed of the expenses incurred properly by him about the realisation, preservation or benefit of the trust property, or the protection or support of the beneficiary. The defendant who has set up his own title to the trust property adversely against the interest of the cestui que trust, is not entitled to be reimbursed for the expenses made for the structures on the said land and Section 32 cannot be invoked in this case.
16. In the premises aforesaid the contentions raised on behalf of appellant having succeeded, the appeal is allowed. The judgment and decree of the court of appeal below in so far as it modified the decree of the trial court by directing deposit of certain sum of money for payment to the defendant for the structures standing on the suit-land is hereby set aside and except as stated above the judgment and decree of lower appellate court is affirmed. The title of the plaintiff No. 2 as owner of the suit property along with the structures thereon is hereby declared and she is entitled to recover possession of the same by evicting the defendant therefrom. In view of the judgment passed in the appeal the cross-objection is dismissed. In the circumstances of the case there will be no order as to costs.
17. The appellant is directed to put in the requisite court-fees of this appeal, to be realised out of her estate-in-suit.
18. The cross-objection is dismissed without any order as to costs.
N.C. Mukherji, J.
19. I agree.