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26. An additional written statement was filed by the 1st defendant, wherein it is claimed that his eldest son Hari Prasad though adopted, he having been adopted prior to the birth of the plaintiffs he was the Manager of the joint family and he had died only on 8.7.1987. It is also claimed that said Hari Prasad was fully aware of the circumstances under which the alleged deeds of declaration of trusts dated 04.03.1936 and 04.01.1937 came into existence. It is also pointed out by the 1st defendant that even from the year 1937 during the proceedings that took place in Bombay High Court, the 1st defendant has asserted his own title hostile to the act of the plaintiffs father and the plaintiffs father, who was alive upto 1947, did not initiate any action to recover possession of the properties. It is contended that in view of such failure on the part of Raja Mohan Prasad as well as Hari Prasad, even assuming that Mohan Prasad had some vested title, the same has been lost to the 1st defendant by adverse possession and limitation. It is also contended that the suit is basically one on the footing that the 1st defendant is benamidar of Raja Mohan Prasad and it is further contended that the suit is barred in view of the provisions of the Binami Transactions (Prohibition) Act, 1988. The claim of Trust has been brought about by the plaintiffs only to save the suit from the Law of Limitation. The circumstances under which the deeds of declaration of Trust dated 04.03.1936 and 04.01.1937 had come into being, are also explained by the 1st defendant and it is the claim of the 1st defendant that the document dated 04.01.1937 was executed by the 1st defendant at the instance of Sumathmul Acharya, who was the Power of Attorney Agent of Mohan Prasad, Venkatachalam and Gopilal who are the pleaders of Mohan Prasad to enable Mohan Prasad to borrow monies from a Zamindar who insisted upon some security situate within the Madras Presidency.

27. The 1st defendant would further contend that since the Zamindar was not interested in lending monies on the security of properties of Mohan Prasad situated Hyderabad, which was a foreign territory at that point of time. At the request of Sumathmul Acharya and others, the 1st defendant made the declaration and on the same day Sumathmul Acharya executed a contemporaneous document by which he had agreed to pay a sum of Rs.65,000/- and also discharge mortgage over the properties. Since the transaction did not go through and Sumathmul Acharya informed the 1st defendant that the loan could not be realized and therefore, he did not pay the consideration also. According to the 1st defendant, on 15.01.1937, Mohan Prasad had returned the document to the 1st defendant stating that he is not able to arrange the loan and hence he was returning the deed of declaration of Trust as cancelled. It is also contended that the trust deed being an unregistered one cannot operate to extinguish the title of the 1st defendant to immovable properties. He has also claimed that the plaintiffs suit based on the alleged deed of declaration deed of Trust dated 04.03.1936 is misconceived and not sustainable in law. The 1st defendant would also contend that the suit is hopelessly barred by limitation and the same cannot be brought within the scope of Section 10 of the Limitation Act. It is also claimed by the 1st defendant that when the creditors of Chunilal Murliprasad Firm, viz. Kasthur Chand Sadasukh attempted to execute the decree in suit No.1623 of 1935 against the 1st defendants property, Raja Mohan Prasad did not choose to make a claim to the properties nor did he use the alleged declaration of the Trust. Even after Raja Mohan Prasad fell out with the 1st defendant, he did not make a claim to the properties on the ground that they were held in Trust by the 1st defendant for himself or his legal representatives. This according to the 1st defendant to go to show that the Raja Mohan Prasad never claimed the suit properties as the properties that were acquired from and out of the funds belonging to him.

34. The Plaintiffs have filed a rejoinder contending as follows:

The plaintiffs would contend that their claim is based on the partnership agreement and the deed of declaration of Trust dated 04.03.1936 and 04.01.1937. Inasmuch as the suit is based on a Trust and the fact that the 1st defendant stood in a fiduciary capacity to the father of the plaintiffs as well as the plaintiffs, there is no question of the suit being barred by limitation. It is also contended that the cause of action for the suit would arise only on the date when the plaintiffs obtained the copy of the promissory note from the Hyderabad High Court on 19.07.1979 and as such the suit filed within 3 years from the said date, cannot be said to be barred by limitation. It is also claimed that the promissory note was executed by the 1st defendant to prevent Raja Mohan Prasad from sending consent letters to Bombay Company to enable it to proceed against the defaulters inasmuch as those defaulters were dummies or benamis of the 1st plaintiff. In the rejoinder, the plaintiffs would deny the claim of the 1st defendant that the promissory note dated 01.09.1936 as well as deeds of declaration of trust were given by him only in order to enable Raja Mohan Prasad to secure loans in Hyderabad and Madras. It is also stated that all the plaintiffs were minors, when Raja Mohan Prasad died and he was forced to sell his huge Bungalow to discharge his liabilities, many of the documents, that could have been available with the plaintiffs, were destroyed at the time of shifting to a smaller house. Therefore, according to the plaintiffs, the suit is not barred by limitation.
All that this letter goes to show that the transaction evidenced by the document of 5th January 1937 was not a real transaction but really a nominal transaction 42.7. Of course the Division Bench had de hors the statements come to the conclusion that Ramnath Goenka was a partner in Chunilal Murliprasad firm. The question that is raised in this suit is whether these documents, viz. the letter dated 04.01.1937 addressed by Ramnath Goenka to Sumatmul Acharya, and the declaration dated 05.01.1937 marked as Ex.P127 would amount a declaration of trust in favour of Raja Mohan Prasad and his heirs. The answer to this question can only in the negative. The letter dated 05.01.1937 executed by Sumatmul Acharya very clearly states that Ramnath Goenka had in fact obliged him and his principal to enable them to raise the loan on the security of the property situate at Madras. In and by the said letter Sumatmul Acharya also undertakes to return the document cancelled, if he is not able to succeed in raising the loan. The letter dated 15.01.1937 written by Raja Mohan Prasad, enclosing the document, viz., the original of Ex.P127, would also show that he had returned the document as cancelled because the loan transaction did not go through. These documents would atleast show that Raja Mohan Prasad has conceded the title of Ramnath Goenka to the properties covered by the said deed of declaration those are the properties which are now the subject matter of this suit also. As already pointed out P.W.1 in his evidence has admitted the signatures of Sumatmul Acharya as well as his father Raja Mohan Prasad in letters dated 05.01.1937 and 15.01.1937. Though, he would claim that those letters were given only after 06.07.1937, when Sivakaran filed an affidavit before the Bombay High Court. Therefore, the irresistible conclusion is that the documents dated 04.03.1936, 04.01.1937 and 05.01.1937 do not and cannot operate to create a trust over the properties in favour of Raja Mohan Prasad or his heirs.