1. This is a suit by four plaintiffs, who claim to be the present trustees of a deed of trust executed by a widowed lady named Gangadai on 22nd December 1897. The first defendants are a firm of merchants carrying on business at 18 Mullick Street, Calcutta, and they are also the tenants of 10 Rupchand Roy Street and 160 Harrison Road, Calcutta, in virtue of a lease in their favour executed by defendant 2, Amarnath Khanna, on 8th February 1910. Defendant 2 was at the time that the lease was granted by him the trustee under the deed of December 1897. He continued to occupy that position until 30th September 1931, when purporting to exercise a power of appointment in that behalf contained in the deed he executed an instrument appointing the plaintiffs, who are his sons, trustees in his place and stead. The prior history of the property in suit is as follows : It was purchased by Gangadai as long ago as 1851. It is in dispute whether the property was purchased by her from her own funds, or whether she purchased it benami on behalf of her husband Sanker Lal who died in the following year. If the former was the true position she had complete power of disposal over it, but if the conveyance to her was on Sanker Lal's behalf, on his death she only obtained a Hindu widow's interest in the property.
2. On 6th January 1874 she executed a deed of trust. The provisions of that deed are of very little importance but it dealt with the property on the footing that she had an absolute interest. This alleged absolute interest of hers was challenged by her deceased husband's nephew Mannulal in a suit which he instituted on 21st June 1889. A consent decree was made in that suit on 6th August 1892 whereby it was declared that the property was the absolute property of the lady and that Mannulal relinquished all claims thereto for a consideration of Rs. 20,000. In pursuance of this decree a deed of release was executed on 24th September of the same year, Mannulal being the party of the first part, Shamlal being the party of the second part, and Gangadai being the party of the third part. The operative part of the deed is as follows:
Now this indenture witnesseth that in persuance of the said agreement and in consideration of the premises the said Mannulal and Shamlal do and each of them doth hereby acquit release and discharge the said Gangadai and her property estate and effects of and from all actions claims and demands whatsoever for or in respect or on account of the moveable and immovable estate of the said Sanker Lal.
3. The deed of trust with which this suit is concerned, that is to say, the deed of 22nd December 1897 admittedly extinguished whatever rights were created by the deed of 1874. By it the property in suit was conveyed to the defendant Amarnath Khanna by Gangadai and the trustees of the former deed,
upon trust to hold the same unto and to the use of the said trustees in fee simple upon trust that the said trustee shall out of the rents, issues and profits thereof pay for the rates, repairs, taxes, revenues and other outgoings respecting or concerning the same or any part thereof, and subject thereto pay to the said Gangadai otherwise called Ganga Bibi the sum of Rs. 50 per month, and pay to Baijnath Khanna, son of the said Bhimmull Khanna, and his son and son's son and so on the sum of Bs. 100 per month, and generally upon trust to maintain and support the members of the family, guests and retainers of the said Gangadai in a style suitable to their rank and condition in life and also to do and perform in life and also to do and perform all sradh and other ceremonies of the members of the family of the said Gangadai in such a manner as the said trustees shall think fit.
4. The beneficiary Baijnath was a member of the family of Gangadai's father, and he is now dead having left no issue. The defendant Amarnath is also a member of the same family, as are his sons, the plaintiffs. Gangadai died in 1906. In 1909 Shamlal, although he was a party to the release of September 1892, instituted a suit against the defendant Amarnath claiming the property with which this suit is concerned as the heir of Sanker Lal or Gangadai. This suit also terminated in a consent decree, and to carry it out, Shamlal on 8th February 1910, that is to say on the same day as the present lease was executed became party to a deed whereby for a consideration of Rs. 30,000 paid to him by the defendant Amarnath he released and transferred to Amarnath the property in suit. In 1911 Shamlal died. The defendant's case is that the family of Gangadai's husband, Sanker Lai, is now extinct, all its members having died. Up to the time of the hearing the plaintiffs seem to have conceded that they were not in a position to show that there were any members of that family surviving, but today evidence has been called to prove the existence of a son of Shamlal of the name of Amarnath. With that evidence I shall deal hereafter. On 2nd July 1920 Amarnath secured a loan by depositing the title deeds of the property in suit with the lessee defendants, and on two subsequent occasions, i.e. on 3rd December 1923, and 14th November 1926 there were further advances of Rs. 40,000 and Rs. 10,000 on the same security. Since 3rd December 1923 the rents which the lessee defendants would otherwise have paid to Amarnath have been appropriated towards payment of the interest on the original equitable mortgage, and the subsequent further charge, in terms of a letter of that date written by the defendant Amarnath to the lessee defendants. On 30th June 1927 the lessee defendants sought to realize their security by the institution of a mortgage suit in which they obtained a preliminary decree on 11th June 1931. On 30th September 1931 the defendant Amarnath executed the deed appointing his sons, the plaintiffs, as trustees in his place. The present suit was instituted on 21st January 1932 and shortly after its institution, an order was obtained staying the proceedings in the lessee defendant's mortgage suit.
5. The plaint sets out the facts which I have mentioned, and in dealing with the lease of the premises in suit para. 17 states that the defendant Amarnath pretending to be the owner of the properties, purported to grant a lease of them to the lessee defendants for a period of 50 years in breach of the trust created by the deed of 1897 and although he had no title to the premises. Para. 18 states with regard to the equitable mortgage, that he deposited the title deeds to secure a sum of Rupees 1,50,000 obtained from the lessee defendants for his own purposes and in breach of trust. There are similar allegations with regard to the subsequent further charges. Para. 25 is as follows:
The plaintiffs are advised and submit that the defendant Amarnath Khanna had no right, title or interest personally in the said premises at any time, but was only a trustee to carry out the trusts under the deed of 22nd September 1897 and that the said Amarnath Khanna obtained no title by the consent decree or the conveyance aforesaid nor is the trust estate affected or bound by the mortgages or lease alleged to have been executed in favour of the members of the defendant firm by the defendant Amarnath Khanna.
6. There are prayers for a declaration that the mortgages are invalid and for possession. Various issues were raised by the defendants but the main defences have been two : (1) they say that such of the trusts created by the deed of 1897 as were valid have come to an end and therefore the plaintiffs have no title to sue, and (2) they claim that the suit is barred by limitation. Another defence was taken, namely that the plaintiffs' purported appointment as trustees is ineffective, because it is said that the deed appointing them was what is sometimes called a fraud on the power. I indicated to Mr. S.N. Banerjee that that defence was not one which I found at all convincing, because if the trust was valid it certainly could not be called a fraud upon it to appoint trustees who might be able to recover trust property unimpeded by the possible difficulties which the defendant Amarnath, as trustee, might expect to encounter, having regard to his conduct in granting a lease in his own name, and in borrowing money for his own purposes on the security of the trust property. Mr. Banerjee, in the light of my observations, was not disposed to carry this defence any further. I therefore have to consider the position with regard to the plaintiffs' title as trustees having regard to the provisions of the deed of 1897 and the question of limitation.
7. With regard to the various trusts created by the deed it is unquestionable that as far as Gangadai herself was concerned the trust in her favour of a payment to her of Rs. 50 a month came to an end with her death in 1906. As to the trust in favour of 'Baijnath Khanna and his son, son's son and so on' of the payment of Rs. 100 per month, the position is that Baijnath is dead. I do not think it can be maintained that the dispositions which are to take effect after his death are valid. They clearly offend both against the rule of perpetuities and the rule of Hindu law which until comparatively recently forbade gifts by will or deed to unborn persons. However, it is not alleged that Baijnath left any male descendant, so the question of the legality of the trust is academic. As to the trust to maintain and support the members of the family, guests, and retainers of Gangadai, learned Counsel for the plaintiffs admits that this is not a disposition which can be supported, as it is void for uncertainty. The difficulty arises as regards the direction on the trustee
to do and perform all sradh and other ceremonies of the members of the family of the said Gangadai in such manner as the trustee shall see fit.
8. Certain cases have been cited by the plaintiffs in support of their contention that this is a valid disposition and that the trusts are still effective. The first case cited is Dwarka Nath Bysack v. Baroda Persaud Bysack (1879) 4 Cal 443. There the testator by his will directed his trustees to feed the really needy and poor at a certain place and to spend suitable sums for the annual sradhs or anniversaries of his father, mother and grandfather as well as of himself after his demise, for the performance of the ceremonies and the feeding of the Brahmins and the poor. The clause in the will in question terminated as follows:
Should there be any surplus after the above expenditure, then I do hereby direct my trustees to spend the said surplus in the contribution towards the marriage of the daughters of the poor in my class and of the poor Brahmins and towards the education of the sons of the poor amongst my class, and of the poor Brahmins and other respectable castes, as my trustees will think fit to comply.
9. In affirming the decision of the Court below, Sir Richard Garth C.J. observed with regard to the validity of one of the particular bequests:
It is not however necessary for us to decide this point, because the learned Judge has held that the concluding words of the clause, commencing thus 'should there be any surplus after the expenditure etc.' must be construed as creating a general residuary bequest which would absorb the whole of the property, even assuming that some of the preceding bequests were invalid.
10. It is obvious from these words that the Court expressed no opinion of what the position would be had the bequest been for the purpose of meeting the expenses of the sradh of the family of the testator only. This case was followed in Lakshmishankar v. Vaijnath (1881) 6 Bom 24 where the bequest was:
Whatever property might remain at the time of my death, it is my wish to expend it in the performance of ceremonies and giving feasts to Brahmins, according to the custom of my caste as far as possible.
11. In my opinion, the Court in upholding the validity of the bequest on the authority of the Calcutta decision Dwarka Nath Bysack v. Baroda Persaud Bysack (1879) 4 Cal 443 regarded the direction to feed Brahmins as a charitable bequest. A case of somewhat similar character is Profulla Chunder v. Jogendra Nath (1905) 9 C.W.N. 528. I am unable in these authorities to find any observations which would justify me in upholding as valid the trust in favour of the sradh ceremonies of Gangadai's family. A somewhat parallel disposition in a Chinese will was held invalid by the Privy Council in Yeap Cheah Neo v. Ong Cheng Neo (1974) L.R. 6 P.C. 381. The direction in the will was that a certain house should be dedicated for the performance of religious ceremonies to the late husband of the testatrix and of herself. With regard to this clause in the will the judgment is as follows:
The remaining devise to be considered is the dedication by the testatrix of the Sow Chong House for the performance of religious ceremonies to her late husband and to herself. It appears to be the usage in China to erect a monumental tablet to the dead in a house of this kind, and for the family at certain periods to place, with certain ceremonies, food before the tablet, the savour of which is supposed to gratify the spirits of their deceased relatives. Although it certainly appears that the performance of these ceremonies is considered by the Chinese to be a pious duty, it is one which does not seem to fall within any definition of a charitable duty or use. The observance of it can lead to no public advantage, and can benefit or solace only the family itself.
12. An Indian case on somewhat similar lines is Chundramoni Dossee v. Motilal Mullick (1880) 5 C.L.R. 496. There the direction was to expend the trust fund in the celebration of the festival of the Durga Puja and Kali Puja, and in the performance of the periodical turn of worship of the testator's family idol Sitaram Thakur and other religious festivals and ceremonies at an expense and on a style the testator had hitherto done or at an expense as the trustees for the time being should think fit. Wilson J. observed:
As to this it seems to me that no part of the trust can be supported. The recital shows the object to be to establish a permanent endowment for the testator's descendants. The trust for their maintenance is undisputably void. The so-called religious trusts are, I think, only trusts for their worship, not gifts to idols, or to charity, but mere perpetual trusts for the family, and therefore void.
13. Having considered these authorities I have come to the conclusion that in the events that have happened none of the trusts created by the deed of 1897 are in existence. It follows that, assuming that the appointment of the plaintiffs as trustees to be effective, they are merely bare trustees and have no right of suit with regard to the trust property. It appears to me to be unnecessary to enquire to whom the property is reverted on failure of the trust, but perhaps I should say a few words on the evidence which has been given with regard to this aspect of the case.
14. It is conceded that the family of Gangadai must mean her husband's family and not her father's family. It was not suggested until yesterday that the plaintiffs were in any position to prove that there were any members of the husband's, that is to say, Shankerlal's family still in existence, and it appeared tolerably clear that the family had become extinct on the death of Shamlal in April 1911. However, a witness named Ram Dulari Sukul was called to prove that Shamlal had left a son of the name of Amar Nath Khettry. Having regard to the relationship by marriage between the two families, one would have thought that the members of the family of Gangadai's father would be more appropriate witness than a stranger, specially as the stranger is the member of the Brahmin caste, while Gangadai's family is a Khettry family. Moreover, Bam Dulari Sukul is an employee of one of the plaintiffs, and having regard to the fact that for that reason he cannot be regarded as an independent witness and to the fact that in spite of the demand for particulars made by the defendants the plaintiffs were unable to suggest any existing member of the family until Ram Dulari Sukul entered the witness box I have come to the conclusion that his testimony is not testimony upon which I can rely, and I must deal with the situation on the basis that Gangadai's family came to an end with the death of Shamlal.
15. As regards the question of limitation, presuming the trust to be valid, Mr. S.N. Banerjee admits that he cannot argue that the suit is barred by limitation in so far as the plaintiffs seek to set aside the mortgage and further charges created by Amarnath on the property in suit. However, he maintains that the suit is barred by limitation in so far as it seeks to set aside the lease to the defendants of 8th February 1910. The suit was filed on 21st January 1932. The Article which I consider applies to the present suit is Article 134. By that a period of 12 years is prescribed for a suit to recover possession of immovable properties conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for valuable consideration. The time from which the period begins to run is when the transfer becomes known to the plaintiff. Section 2(8), Limitation Act, provides that the 'plaintiff' includes any person from or through whom the plaintiff derives his right to sue. Therefore, the word 'plaintiff' includes Amarnath, the appointor under the deed of trust, and as he was the lessor it is obvious that he must have had knowledge of the transfer contemporaneously with the execution of the deed.
16. Section 10 cannot apply because the defendants are assigns for a valuable consideration, and it has not been shown that when the lease was executed they were aware that the property was affected by any possible trust. The 12 years therefore came to an end in February 1922, and the right of Amarnath or anybody deriving title from him to bring a suit to have the lease set aside terminated. I hold therefore that with regard to the claim to have the lease set aside the suit is barred by limitation. However the first point with regard to the title of the plaintiffs goes to the root of the suit, and entitles the defendants to a decree dismissing the suit with costs.