Bombay High Court
Ramchandra S/O Narayandas Mundada vs Kamalkishor S/O Kisanlal Karwa on 31 August, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.407 OF 2014
APPELLANT: Ramchandra S/o Narayandas Mundada,
(Ori. Plaintiff) Age - 68 years, Occ- Business, R/o
Gandhi Chowk, Malegaon, Tq.
Malegaon Dist. Washim.
-VERSUS-
RESPONDENT: Kamalkishor S/o Kisangopal Karwa,
(Ori. Defendant) Age - 65 years, Occ-Business and
Cuiltivator, R/o Karwa Sadan, Kirana
Galli, Kamptee, Tq. Kamptee, Dist.
Nagpur.
Shri M. G. Sarda, Advocate for the appellants.
Shri S. V. Sohoni, Advocate for the respondents.
AND
SECOND APPEAL NO.408 OF 2014
APPELLANT: Sitabai S/o Nandkishor Dhoot,
(Ori. Plaintiff) Age - adult, Occ- business and
housewife, R/o Dhoot Niwas, Sarafa
Line, Nanded, Tq. And Dist. Nanded
through POA Prabhurao Wagh.
-VERSUS-
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RESPONDENT: Kamalkishor S/o Kisangopal Karwa,
(Ori. Defendant) Age - 65 years, Occ-Business and
Cultivator, R/o Karwa Sadan, Kirana
Galli, Kamptee, Tq. Kamptee, Dist.
Nagpur.
Shri M. G. Sarda, Advocate for the appellants.
Shri S. V. Sohoni, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 09-08-2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 31-08-2017
ORAL JUDGMENT :
1. In view of similarity of facts and the nature of evidence led in both the second appeals, they can be conveniently decided by this common judgment.
2. The appellants in both the appeals are the original plaintiffs who had filed suit for declaration of ownership along with prayer for perpetual injunction seeking to restrain the respondent from causing disturbance to their possession. The suits were decreed by the trial Court. The appeals preferred by the original defendant were allowed and as a consequence the suits were dismissed. Hence, the plaintiffs have come up in appeals. ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 3/21 After the appeals were admitted and the application for temporary injunction came to be rejected with a rider that the parties were restrained from alienating or creating any third party rights in the suit property, the defendant filed Special Leave Petition No.9687/2015 challenging said interlocutory order. The Special Leave Petition was dismissed on 7-4-2017 and this Court was requested to dispose of the second appeals as expeditiously as possible and within a period of six months from said date. In the light of these orders, the second appeals have been heard.
FACTS IN SECOND APPEAL NO.407/2014.
3. It is the case of the plaintiff that he is the owner of land admeasuring 6 hectares 38R land on the western side of Gut No.407. The plaintiff claims ownership on the basis of registered gift deed dated 8-11-1994 executed by four trustees. According to the plaintiff, though his name was recorded in the revenue records, the defendant made an application to the Tahasildar, Malegaon for mutating his name as owner on the ground that one Smt. Parubai Kisangopal Karwa had executed a will in his favour. In view of the revenue proceedings initiated by the defendant, the plaintiff filed Regular Civil Suit No.29/2004 praying that it be declared that he was the owner of the suit property. As he was in possession of the same, a prayer for permanent injunction was also ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 4/21 made.
4. The defendant filed his written statement and denied the case of the plaintiff. According to him, he had title over the suit property in view of will dated 13-4-1993 executed by said Parubai. It is the case of the defendant that Kisangopal and Parubai who were husband and wife had no issue and hence, the defendant was adopted by them as their son. In the adoption deed dated 6-2-1976 which was duly registered, a condition was imposed that no transaction with regard to any of their properties should be undertaken without the consent of the defendant. According to him, the alleged creation of Trust by four trustees was an illegal act and no rights were conferred on the said Trust. In the revenue proceedings, it was established that the defendant was in continuous possession and, therefore, the suit as filed was liable to be dismissed.
FACTS IN SECOND APPEAL NO.408/2014.
5. It is the case of the plaintiff that she is the owner of land admeasuring 6 hectares 38R land on the eastern side from Gut No.407. The plaintiff claims ownership on the basis of registered gift deed dated 8-11-1994 executed by four trustees. According to the plaintiff, though her name was recorded in the revenue records, the defendant made an application to the ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 5/21 Tahasildar, Malegaon for mutating his name as owner on the ground that one Smt. Parubai Kisangopal Karwa had executed a will in his favour. In view of the revenue proceedings initiated by the defendant, the plaintiff filed Regular Civil Suit No.29/2004 praying that it be declared that she was the owner of the suit property. As she was in possession of the same, a prayer for permanent injunction was also made.
6. The defendant filed his written statement and denied the case of the plaintiff. According to him, he had title over the suit property in view of will dated 13-4-1993 executed by said Parubai. It is the case of the defendant that Kisangopal and Parubai who were husband and wife had no issue and hence, the defendant was adopted by them as their son. In the adoption deed dated 6-2-1976 which was duly registered, a condition was imposed that no transaction with regard to any of their properties should be undertaken without the consent of the defendant. According to him, the alleged creation of Trust by four trustees was an illegal act and no rights were conferred on the said Trust. In the revenue proceedings, it was established that the defendant was in continuous possession and, therefore, the suit as filed was liable to be dismissed.
7. The parties initially led evidence in Regular Civil Suit ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 6/21 No.29/2004. The plaintiff examined himself and five other witnesses in support of his case. The defendant examined himself and six other witnesses in support of his defence. In Regular Civil Suit No.31/2004, the evidence of aforesaid witnesses was relied upon and the defendant also adopted their cross-examination. Similarly, the defendant also relied upon evidence of his witnesses that was led in Regular Civil Suit No.29/2004.
8. The trial Court in both the suits found that on the basis of the trust deed, the suit property was transferred by Parubai in favour of the Trust. The trustees had thereafter executed a gift deed in favour of the respective plaintiffs. After holding that the plaintiffs had come into possession on the basis of the gift deeds, the suits came to be decreed.
The appellate Court, however, found that the gift deeds in favour of the plaintiffs were without any legal force. As per the condition incorporated in the adoption deed, it was not permissible for Parubai to transfer any property without the consent of her husband and adopted son. It was accordingly held that no title stood transferred in favour of the plaintiffs. The manner in which the affairs of the Trust were alleged to have been run was also found to be suspect. On that basis, it was held that the plaintiffs did not have title to the suit property and hence, the ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 7/21 suits were liable to be dismissed. The appeals were accordingly allowed by the appellate Court.
9. While admitting the appeals, the following substantial questions of law came to be framed:
[A] Whether the learned First Appellate Court has not failed to exercise the jurisdiction as an Appellate Court, as it has failed to consider the reasons given by the learned Trial Court before arriving at a contrary opinion?
[B] Whether the Trustees of Smt. Parubai Kisangopal Karwa Trust did not have authority to alienate the Trust property, including transfer by way of Gift in favour of the appellant, even though such authority is conferred upon them in the Trust Deed itself?
[C] Whether the acceptance of trust, as contemplated under Section 10 of Indian Trusts Act, is required to be in writing or it may be oral or be implied from the acts of the Trustees?
[D] Whether the trustees of a private trust are required to enter into transactions pertaining to trust property only in name of the Trust and whether such transactions cannot be entered into in the individual names of the Trustees, particularly, when as per the provisions of Indian Trusts Act, 'Trustee' is the owner of the property and 'Trust' is only an obligation annexed to the ownership of the property?-::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 8/21
10. Shri M. G. Sarda, learned Counsel for the appellants - original plaintiffs submitted that it was not open for the defendant to challenge the Trust deed as well as the gift deed inasmuch as no counter claim or cross suit was filed by the defendant to challenge these registered documents. The plaintiffs having received title on the basis of registered gift deed dated 8-11-1994 and the plaintiffs having been put in possession on that basis, they were entitled for the relief of declaration. Relying on the provisions of Section 31 of the Specific Relief Act, 1963, it was submitted that without challenging the registered documents in favour of the plaintiffs, the defendant cannot succeed. As the plaintiffs were put in possession the suit for declaration of their title was liable to be decreed. It was submitted that the trial Court on a proper consideration of the entire evidence on record held in favour of the plaintiffs. The appellate Court, however, without considering those reasons assigned by the trial Court reversed the said judgment. In that regard, the learned Counsel placed reliance on the decisions in Md. Noorul Hoda vs. Bibi Raifunnisa and others 1996(7) SCC 767, Kasireddy Ramayamma v. Kasireddy Rama Rao AIR 2000 Andhra Pradesh 29, Siddhi Chunilal Daubhal & anr vs. Suresh Gopikishan Prohit & anr 2009 (6) Bom. C.R. 857, the judgment of Patna High Court in First Appeal No.744/1979 dated 10-9-2014 ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 9/21 (Bibi Basarion vs. Nazriruddin) and judgment of the Calcutta High Court in First Appeal No.174/2005 dated 6-3-2008 (Hamida Begum Alias Alo Bibi vs. Umran Bibi Sk. Karim Ali). It was then submitted that considering the nature of defence raised by the defendant in his written statement, it was not permissible for the appellate Court to have examined the validity of the Trust deed and gift deed. The appellate Court ignoring the nature of defence as raised in the written statement proceeded to consider the validity of these documents while holding against the plaintiff. For said purpose, the learned Counsel relied on the decision National Textile Corporation Ltd. vs. Nareshkumar Badrikumar Jagad & Ors. 2012(2) Mh.L.J. 296. It was further submitted that on the basis of evidence on record, it was clear that the plaintiffs were in possession of the suit field and the suit of the present nature seeking declaration of their title simplicitor was maintainable. Relying upon the decision in Sri Thimmaiah vs. Shabira and Ors 2008(4) SCC 182 and Visual Singh vs. State of Madhya Pradesh 1998(9) SCC 90, it was submitted that the judgment of the trial Court was liable to be restored. It was then submitted that the alienation of the Trust property by the trustees in favour of the plaintiffs was valid and the appellate Court committed an error in holding otherwise. The trustees having accepted the properties as ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 10/21 gifted by Parubai, it was not necessary that acceptance of said Trust was required to be in writing. Merely because in the gift deed in favour of the plaintiffs the names of the individual trustees were mentioned, the same would not vitiate the gift deed. Similarly, the mutation entries stood in the name of the trustees which in fact indicated acceptance of the said property as Trust property. It was, therefore, submitted that the appellate Court committed an error by interfering with judgment of the trial Court.
11. On the other hand, Shri S. V. Sohoni, learned Counsel for the respondent - original defendant supported the impugned judgments. According to him, the appellate Court was justified in examining as to whether on the basis of the respective gift deeds any title was conferred on the plaintiffs. According to him, unless the Trust had any valid title in its favour, it was not open for the Trust through its trustees to have executed the gift deed. As the creation of the Trust was itself without authority of law and void, there was no need to specifically challenge the said document. He referred to the evidence on record to indicate the manner in which the alleged Trust was shown to have been created and submitted that its entire activities were shrouded in doubt. According to the specific condition in the adoption deed dated 6-2-1976, any alienation of the property of Parubai was not permissible without ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 11/21 the consent of other family members. Such a condition incorporated in the adoption deed was valid and for said purpose the learned Counsel relied on decision in Hanumantrao Ramrao Deshmukh vs. Krishnabai w/o Ramrao Deshmukh 1986(1) Bom. C.R. 50. It was then submitted that the plaintiffs were never put in possession on the basis of the gift deed. The defendant continued to be in possession of the suit properties being the adopted son of Parubai. A specific finding as to possession was recorded by the Revenue Authorities which had become final. As the plaintiffs were not in possession even before filing of the suit, the suit simplicitor for declaration was not maintainable in absence of any prayer for possession. In that regard, the learned Counsel placed reliance on the decisions in Union of India and others v. Vasavi Coop. Housing Society Ltd. And others AIR 2014 SC 937, Union of India vs. Ibrahim Uddin and another 2012(8) SCC 148 and T. K. Mohammed Abubucker vs. P. S. M. Ahamed Abdul Khader & Ors. AIR 2009 SC 2966. According to him, the plaintiffs ought to succeed on the strength of their own case by proving their title and they could not be expected to succeed on the basis of the weakness in the defendant's case. The burden of proving the validity of the gift deeds on the basis of which the plaintiffs were claiming title was on the plaintiffs themselves. This burden was not discharged. ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 :::
sa407.14nsa408.14.odt 12/21 Unless the gift deeds were proved to be bonafide the burden would not shift on the defendant. The learned Counsel relied on the decision in Subhra Mukherjee and another v. Bharat Coking Coal Ltd. And others AIR 2000 SC 1203 in that regard.
12. It was then submitted that the alleged gift deeds were shown to have been executed by the power of attorney holder of two trustees. Unless the document of power attorney was registered, it could not be acted upon. Reliance in that regard was placed on the decision in Ashok Kumar Dulichand Sharma v. Jethmal Motilal Jedia and Ors. 2009 (5) AIR Bom R 753. In any event, it was submitted that both the plaintiffs were closely related to the trustees and therefore transfer of Trust property by the trustees in favour of their relatives was impermissible. For said purpose, reference was made to the decision in Achi Thayar Ammal and others vs. Balkis Nachial AIR 1931 PC 68. The learned Counsel also referred to the evidence on record to indicate that the plaintiff in Regular Civil Suit No.31/2004 had not entered the witness box but had led evidence of her power of attorney holder and hence adverse inference was liable to be drawn. About nine documents had been got executed on the same day by the brother of the plaintiff in Regular Civil Suit No.29/2004 on behalf of the Trust. As there was no intention on the part of Parubai of ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 13/21 transferring the ownership of the properties in favour of the Trust which was clear from the entire evidence on record, mere execution and registration of the alleged gift deeds in favour of the plaintiffs was not sufficient to prove that title had passed over in their favour. Reliance in this regard was placed on the decision in Kaliaperumal v. Rajagopal & anr. AIR 2009 SC 2122. It was thus submitted that considering the entire material on record, the judgment of the appellate Court did not call for any interference.
13. I have heard the learned Counsel for the parties at length and with their assistance, I have also gone through the records of the case. I have thereafter given due consideration to their respective submissions.
14. Substantial questions of law at [A] and [B] are taken up first since answer to those questions would depend on the consideration of questions of law at [C] and [D]. It would first be necessary to refer to the relevant documents placed on record as well as the evidence led by the parties while answering the substantial questions of law. On 9-4-1936 Parubai's father executed a gift deed by which various lands including Gut No.407 were gifted to her. Parubai was married with Kishangopal. They, however, did not have any issue. On 6-2-1976 they adopted the defendant Kamalkishor. As per the adoption deed at Exhibit-241 it ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 14/21 was agreed that after the adoption, no alienation of any of the properties would be undertaken in absence of consent of the adoptive parents and the adopted son. This adoption deed was duly registered. On 16-4-1983 certain property belonging to the family was sold by the defendant's father to one Arjunlal Purohit. This sale deed is at Exhibit-173 and it refers to the specific consent being obtained of the other two family members which includes the defendant as the adopted son. Thereafter on 6-8-1985, a Trust deed is shown to have been created by Parubai in which it is stated that on account of her old age and residence at Kamptee, the property owned by her at Malegaon was being donated for creating a Trust. Said Trust deed is at Exhibit-97. Thereafter, on 13-4-1993 as per Exhibit-74 Parubai executed a will in favour of the defendant with regard to her properties which included the suit properties. She also executed a document of power of attorney at Exhibit-176 in favour of the defendant. Said Parubai expired on 22-11-1993. Thereafter on 8-11-1994 the gift deeds in question at Exhibit117 and Exhibit 116 came to be executed in favour of the plaintiffs. The defendant thereafter initiated revenue proceedings for correction of the mutation entries and by various orders at Exhibits-195, 196 and 225 the revenue entries were directed to be corrected in favour of the defendant after holding ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 15/21 that he was in possession of the suit properties.
The aforesaid is the documentary evidence on record which is being relied upon by the parties in support of their respective stands.
14. Since the plaintiffs have sued for declaration of title, as held in Vasavi Cooperative Housing Society Limited (supra) the onus to prove title is on the plaintiffs and the same has to be discharged by adducing sufficient evidence irrespective of the question whether the defendants have proved their case or nor. Even if the title set up by the defendant is found against, in the absence of the plaintiffs' title being established, the plaintiffs must be non - suited. As per the adoption deed at Exhibit-241 when the defendant was adopted on 6-2-1976, a specific condition was incorporated in the said deed that no property of the family would be alienated without obtaining the consent of the other family members. Imposing such condition in the adoption deed is found to be in favour of the beneficiary, namely the adopted son and in Hanumantrao Ramrao Deshmukh (supra) such agreement not to alienate the property has been found to be not unreasonable, harsh or unjust. The object being the safeguarding of the interest of the beneficiary, full effect would have to be given to such stipulation in the adoption deed. That the adoptive parents followed this condition is clear from the sale deed dated 16-4-1983 at Exhibit- ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 :::
sa407.14nsa408.14.odt 16/21 173 by which some property was sold by the adoptive father to third party. The sale deed specifically refers to the consent given by the other family members including the defendant to said transaction. The aforesaid, therefore, clearly indicates that the condition imposed in the adoption deed was duly accepted and followed by the family members. Perusal of the Trust deeds at Exhibit-97 dated 6-8-1985 indicates that no such consent has been obtained from the other family members including the defendant by Parubai before creating the Trust and alienating some of her properties in its favour. Shamsundar Mundhada who was examined on behalf of the plaintiff in Regular Civil Suit No.29/2004 deposed at Exhibit-134 and in his cross-examination he clearly admitted that before the gift deed was executed by Parubai there was no written consent obtained from the defendant. It is thus clear that while disposing of certain properties in favour of the Trust, Parubai had not obtained the consent of the other family members. This was in contravention of the stipulation in the deed of adoption at Exhibit-241.
15. In so far as the creation of the Trust is concerned, the Trust deed at Exhibit-97 required the four trustees to give various amounts to the donor - Parubai for meeting her expenses. The evidence on record, however, indicates that the trustee - ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 :::
sa407.14nsa408.14.odt 17/21 Shamsundar Mundhada who was examined by the plaintiffs could not depose about any of the activities of the Trust. He stated that though the amounts used to be given to the donor, it was not possible for him to produce the accounts of the same. In his cross- examination, he further admitted that since the formation of the Trust in the year 1985 till the death of Parubai in the year 1993 no meeting of the trustees was held. He was not in possession of the original Trust deed. Though the Trust deed at Exhibit-97 refers to the name of the Trust as "Parvatibai Kisangopal Karwa Trust", the mutation entries of the suit properties were shown to have been taken in the individual names of the trustees. No explanation for the same was given by the said trustee. The Trust deed was not got registered with the Trust Authorities. He further stated that the gift deeds came to be executed in favour of the plaintiffs as the objects of the Trust were fulfilled. The plaintiff in Regular Civil Suit No.29/2004 is the younger brother of the trustee Shamsundar Mundhada while the plaintiff in Regular Civil Suit No.31/2004 was the wife of another trustee Nandkishor Dhoot. In other words, both the beneficiaries of the alleged Trust property are closely related to the trustees. In the light of provisions of Section 51 of the Indian Trust Act, the gift of Trust properties in favour of close relatives of the trustees has to be viewed with greater caution as ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 18/21 held by the Privy Council in Achi Thayar (supra).
Thus, from the aforesaid evidence on record, there is a great doubt as regards creation of the Trust by Parubai and the subsequent conduct of the affairs of the said Trust. As the said Trust deed at Exhibit-97 is the basis on which the subsequent gift deeds were executed in favour of the plaintiffs, this material evidence cannot be ignored while considering the validity of the said gift deeds.
16. Perusal of the two gift deeds which are the basis on which the plaintiffs claim title indicate that though according to the plaintiffs there were four trustees, the gift deeds are executed by two trustees and two power attorney holders on behalf of the other two trustees. This fact is admitted by the witness Shamsundar Mundhada in his cross-examination. As held in Ashokkumar Dulichand Sharma (supra), when a document of such nature is executed by the power of attorney holder, the document of power attorney must be duly registered. There is no evidence brought on record by the plaintiffs in that regard.
17. If the various orders at Exhibits-194, 195, 196 and 225 passed by the revenue Authorities are perused, it can be seen that it has been categorically held in these proceedings that the defendant always continued in possession. The plaintiffs were ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 19/21 never shown to be in possession. The revenue Authorities have observed that the mutation entries showed only the names of the trustees though it was the case that the properties were Trust properties. There is no explanation given as to why the name of the Trust was not entered in the revenue records. The evidence on record also indicates that though plaintiffs were not in possession, they have filed suit simplicitor for declaration of title. The legal position in this regard is clear from the decision in Ibrahim Uddin and another (supra) that unless the plaintiff is shown in possession he cannot claim the relief of declaration of his title simplicitor. It is to be noted that even at the interlocutory stage either before the trial Court or before the first appellate Court there was no order of injunction operating in favour of the plaintiffs. In that view of the matter, simplicitor relief of declaration of title could not have been sought. Hence, the decisions relied upon by the learned Counsel for the appellants in the light of provisions of Section 31 of the Specific Relief Act, 1963 cannot assist their case. As held in Subhra Mukherjee and another (supra), unless the plaintiffs prove the execution of the gift deeds to be bonafide, the burden would not shift on the defendant.
18. I find that the appellate Court was justified in considering the entire evidence on record for the purposes of ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 20/21 demanding the validity of the gift deed. As the plaintiffs were relying upon the said gift deeds, the burden was on them to prove that by virtue of said gift deeds they had acquired valid title. Similarly, for proving the validity of the gift deeds it was necessary for them to prove the competence of the donors who executed the gift deeds. Once it is found that the Trust deed itself was executed without obtaining the consent of other family members as required by the adoption deed, the creation of the Trust itself was on a weak ground. The plaintiffs having approached the Court seeking declaration of title, the entire burden was on the plaintiffs. It was not necessary for the defendant in this backdrop to have sought a declaration that the Trust deed or the subsequent gift deeds were invalid. On the other hand, if the plaintiffs would have proved the validity of the gift deeds on the basis of the Trust deed, then the things would have been different. Hence, considering the nature of evidence on record, I do not find that the appellate Court committed any error in reversing the judgment of the trial Court. It has, in fact, considered the entire evidence in its proper perspective and it cannot be said that it had failed to consider the reasons given by the trial Court while decreeing the suit. It cannot be said that the appellate Court has gone beyond the pleadings of the defendant as urged on behalf of the plaintiffs by relying upon ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 ::: sa407.14nsa408.14.odt 21/21 the decision in National Textile Corporation Ltd (Supra). The trial Court without properly considering the evidence on record erroneously held that the Trust deed and the gift deed were valid documents. The substantial questions of law are accordingly answered against the appellants. The appellate Court committed no error of jurisdiction or in law while reversing the judgment of the trial Court. As there was no valid vesting of title in favour of the Trust, the trustees had no authority to alienate the Trust property. The acceptance of the Trust also cannot be implied from the acts of the trustees or for that matter the family of Parubai. Considering the answers given to substantial questions [A] and [B], it is not necessary in these facts to further consider substantial questions [C] and [D].
19. In view of aforesaid discussion, I do not find any reason to interfere with the judgment of the first appellate Court. As a result thereof, the judgment dated 16-8-2014 in Regular Civil Appeal No.115/2012 and Regular Civil Appeal No.116/2012 does not call for any interference. Consequently, the second appeals stand dismissed with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 31/08/2017 ::: Downloaded on - 01/09/2017 01:26:30 :::