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1 - 10 of 10 (0.26 seconds)Hari Kishen Bhagat vs Kashi Pershad Singh And Bajrung Sahai ... on 2 December, 1914
4. No reference was made to Section 32 of the Evidence Act either in the argument or in the judgment. It must be assumed that the recitals in the document concerned in that case were not covered by Section 32.
Nanda Lal Dhur Biswas vs Jagat Kishore Acharjya Chowdhuri on 17 July, 1916
The same remark applies to the decision in Banga Chandra Dhur Biswas v. Jagat Kishore Acharjya Chowdhury (1916) L.R. 43 I.A. 249 : I.L.R. 44 C. 186 : 31 M.L.J. 563 (P.C.)
Kasi Chetty And Ors. vs Srimathu Devasikhamony Nataraja ... on 22 August, 1912
It is true that in the decision in Kasi Chetty v. Srimathu Devasikamony Nataraja Dikshitar (1913) M.W.N. 181 the plaintiff was in possession of the property in suit and it was held that he was entitled to maintain a suit to eject a tenant. But it is not clear from the other cases that the prior possession in the de facto trustee was an essential element in upholding his right to maintain the suit. It is clear from the cases mentioned above that the conclusion arrived at in those cases was not based upon the well-known principle that a person without title but who had possession can maintain a suit to recover possession from a trespasser who does not claim under leave and licence of the lawful owner but on a different principle, namely, that a de facto manager of a trust should be allowed to maintain a suit which is for the benefit of the trust in spite of some defect in his title as trustee. This, of course, does not mean that any person can call himself a trustee and maintain a suit to recover trust properties from trespassers. It is not that a de facto trustee is like a next friend of a minor, but in the present case the plaintiff is a person appointed trustee by Neelambal Achi. He entered on the duties of the trustee. He leased out suit properties to the 3rd defendant. It is by reason of bona fide acts of this kind that he should be regarded as the de facto trustee and I think as such de facto trustee he is entitled to maintain the suit whether he actually had prior possession or not. But even if it were otherwise the right to possession in Neelambal Achi certainly passed to him for it is now found that he is the reversioner to Neelambal's estate. That would be enough to enable him to maintain the suit.
Marimuthu Pillai vs Velu Pillai And Ors. on 22 December, 1915
and to Marimuthu Pillai v. Velu Pillai (1915) 32 I.C. 908.
Benarsi vs Syed Altaf Husain on 12 March, 1921
Lala Birj Lal vs Musammat Inda Kunwar And Het Ram on 6 February, 1914
3. The use of the words "by themselves" shows that the recitals arc not inadmissible in evidence and the effect of the observation is merely that without other evidence they are not enough to prove the necessity. The judgment of the Privy Council makes no reference to Section 32 of the Indian Evidence Act. From the report of the case in Lola Brij Lal v. Mt. Inda Kunwar (1914) I.L.R. 36 A. 187 at 193 : 26 M.L.J. 442 (P.C.) it appears that Sir E. Richards, K.C., the learned Counsel for the appellant, relied on Section 32 of the Indian Evidence Act, but none of the reports shows that there was any admission in the mortgage deed or sale deed which would be strictly covered by Section 32 of the Evidence Act.
Khaji Mahomed Ibrahim Saheb vs Sundaram Chetti And Ors. on 5 October, 1925
Moideen Bibi Ammal By Agent Montana ... vs Rathnavelu Mudali on 2 September, 1926
Krishna Pillai vs Arunachela Chettiar on 13 March, 1908
One may also assume that this rule applies even to trusteeship; but in the present case the document does not say that the trusteeship is conferred upon Kandaswami Thevar, his sons and grandsons and so on for generations but it simply says that the said dharmas ought to be conducted after her life-time and Kandaswami Thevar and his sons and grandsons and so on for generations should continue to conduct for ever the said charities. Even assuming that this sentence can be regarded as a sentence conveying trusteeship to Kandaswami Thevar absolutely, seeing that Kandaswami has not accepted the trusteeship during the life-time of Neelambal Achi, though the trusteeship was to take effect only after her death and seeing that he did not survive Neelambal so as to have an opportunity of accepting it after her death, it seems to me that the trusteeship never vested in him at all and did not descend upon his heirs. The learned Advocate-General contended that even if Kandaswami Thevar did not accept the trusteeship during the life-time of Neelambal Achi it was open to his heirs to accept it after Neelarnbal's death, because he contends that the estate conferred by the document which is not a will but a deed of settlement is a vested estate in the trusteeship after Neelambal's death, that is a vested remainder in the trusteeship. This might have been so if Kandaswami had accepted the trusteeship during Neelambal's life-time, Krishna Pillai v. Arunachela Chettiar (1908) 18 M.L.J. 304 but as he never accepted it I think the estate conferred by the settlement deed remained only a contingent estate and when he died there was nothing to be transmitted to his heirs. No authority has been cited on either side in support of the respective contentions on this part of the case and the matter is one of first impression and I hold that in such a case no estate descended upon the heirs. On this view the plaintiff is a validly appointed trustee, even though he was appointed without waiting for Kandaswami's refusal. But even assuming that the above view is incorrect and that some estate descended to the heirs of Kandaswami we have to see the conduct of Kandaswami's heirs. Kandaswami left two widows and these are defendants 4 and 5 in the case. The 4th defendant is a sister of the 2nd defendant and half-sister of the 1st defendant. They filed a written statement which shows that they were not anxious to have the trusteeship and that they were anxious to support defendants 1 and 2. Their statement in paragraph 6 of the written statement shows that their attitude is adverse to the trust. The mere fact that they proceed to state further, "If the Court holds that Neelambal Achi was legally entitled to endow the said properties for charities, we are prepared to manage the same" cannot conceal the fact that they were really in collusion with the 1st defendant who was acting adversely to the trust, and their primary contention being that Neelamhal Achi had no power to endow the suit property for charities they must be taken not to have accepted the trust and their willingness to manage the trust on the happening of some contingency cannot be regarded as an acceptance. On this ground also, the appointment of the plaintiff as trustee becomes operative. But even if I am incorrect in the view I have taken about the construction of the written statement, still it is now clear that the plaintiff is the only trustee who is willing to act because after the decree of the Lower Appellate Court, the 5th defendant never filed an appeal to the High Court. The 4th defendant filed Second Appeal No. 1233 of 1927. She died and the appeal abated. So far as the 5th defendant is concerned, taking her written statement, with her subsequent conduct in not appealing, one must infer that she is not anxious to be a trustee. Once the finding that there is a trust is reached, it is the idol that is really entitled to the suit properties. Who exactly should be the trustee representing the idol is really a different matter. Any difficulty in deciding that question ought not to prejudice the rights of the idol. It has been held in several cases that a de facto trustee can maintain a suit to recover trust properties.
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