Law Web: Donee can not claim any better title than what his predecessor in title did not possess

Though Sri Halaswamy, learned Advocate appearing for the third defendant would vehemently contend that suit schedule property being different from the property gifted to third defendant by reiterating the grounds urged in paragraph 10 and 13 of the written statement, it would not detain this Court for a longer time to negative said contention inasmuch as, the claim of third defendant is based on the gift deed executed by defendant Nos.4 and 5 on 05.10.1961 - Ex.P-3. A perusal of Ex.P-3 would indicate that donors therein have traced their title to the suit schedule property and claims to have acquired such title by virtue of the Will

dated 17.07.1945 - Ex.P-2. Recitals in Exhibit P-3 would indicate that husband of the first donor i.e., late Arasoji Rao had bequeathed the property mentioned in the Will in favour of defendants 4 and 5 and confirming the deed of settlement dated 29.04.1943 thereunder. As such defendants 4 and 5 claimed that they possessed right to gift the said property. As already noticed herein above, under the Will dated 17.07.1945 - Ex.P-2 executed by late B Arasoji Rao, suit schedule property has not been bequeathed in favour of defendants-4 and 5 but he has created Trust or charity and has bequeathed in favour of the Trust created by him namely, B.Arasoji Rao Charities and as such, the very right of the defendants-4 and 5 to deal with the suit schedule property being unavailable, defendant No.3 cannot claim any better title than what his predecessor in title did not possess. This would also establish the fact that defendants -4 and 5 are not claiming that they

acquired title to the suit schedule property under any other instrument. Defendant No.5 has also not been able to establish or prove that suit schedule property has been acquired by the donors namely, defendants-4 and 5 under any other instrument or deed. In view of the fact that defendants-4 and 5 did not acquire any title to the suit schedule property under any other document and under the Will Ex.P-2, same having been bequeathed in favour of the trust, defendants 4 and 5 could not have gifted the suit schedule property to third defendant under gift deed dated 05.10.1961 - Ex.P-3 claiming thereunder that they acquired the title to the suit schedule property under Exhibit P-2. Further third defendant has not been able to demonstrate that the donees namely defendants 4 and 5 had acquired title to the suit schedule property namely property gifted to him was under any other document. Thus, third defendant has utterly failed to establish that the property gifted by

defendants-4 and 5 to third defendant is separate or different or distinct from the property acquired by late B.Arasoji Rao under the sale deed dated 22.06.1938 - Ex.P-13 which came to be bequeathed by him under the Will dated 17.07.1945 - Ex.P-2. In that view of the matter I am of the considered view that point No.3 and 5 requires to be answered by holding that late Sri.B.Arasoji Rao had bequeathed the suit schedule property under the Will dated 17.07.1945 Exhibit P-2 in favour of the trust which he had acquired under the sale deed dated 22.06.1938 Exhibit P-13 and as such trial court was correct in accepting the evidence tendered by the parties to decree the suit.

Karnataka High Court

Sri Keshava Pai Deceased By Lrs vs Sri V.Jothoji Rao on 22 August, 2013

Author: Aravind Kumar

Sri.Keshava Pai
V
1. Sri. V.Jothoji Rao,

Citation;AR 2014 (NOC)166 kar,2013(4) AKR 816

This appeal is preferred by third defendant questioning the correctness and legality of judgment and decree passed by I Additional City Civil Judge, Bangalore in O.S.No.402/1980 (old No.367/1973) 7

whereunder trial Court has declared the gift deed dated 05.10.1961 executed by Manubai and K Satyanarayana in favour of third defendant as void, illegal and not binding on the plaintiff's charities, by decreeing the suit in part with a further direction to the defendants to hand over the suit property to plaintiffs.

2. I have heard the arguments of Sri Halaswamy, learned Advocate appearing on behalf of Sri Anantha Mandagi for appellant and Sri S.R.Goutham, learned Advocate appearing on behalf of respondents- 1,2,3 & 5.

CONTENTIONS OF APPELLANT (THIRD DEFENDANT) COUNSEL

3. It is the contention of Sri Halaswamy, learned Advocate appearing for the appellant that issues regarding suit being barred by limitation, perfection of 8

title of the suit schedule property by defendants by adverse possession and non joinder of necessary parties ought to have been tried as a preliminary issues and decided the same. On the issue of limitation, he would elaborate his submission by contending that finding recorded by the trial Court on issue No.5 is unsustainable having regard to the language of Limitation Act, 1963 and contends that in the absence of any material supporting the contention of plaintiffs that suit schedule property vested in the Trust, it ought to have been held that suit was barred by limitation. He would further contend that when P.W.1 has admitted in his cross examination that the donor Smt.Manubai was in possession of suit schedule property after the death of her husband Arasoji Rao in the y ear 1945, it was necessary to hold that the suit was barred by limitation since third defendant/appellant has been in an uninterrupted and exclusive possession of suit schedule 9

property since 1961. He would also contend that in the absence of any pleading in the plaint as to when the plaintiffs came to know about the gift deed dated 05.10.1961 having been executed, suit filed on 27.10.1973 after expiry of 12 years from the date of gift deed was barred by limitation. He draws the attention of the Court to the judgment in O.S.No.27/1956 marked as Ex.P-5 to contend that finding recorded by the trial Court that suit schedule property vested in the Trust and said finding is contrary to Ex.P-5. He would contend that none of the ingredients of Section 10 of the Limitation Act, 1963 are attracted to the facts and circumstances of the case.

4. He would also elaborate his submission by contending that finding recorded by the trial Court at paragraph 34 of the judgment that there is no mention as to when Smt.Manubai came into possession of suit 10

schedule property by over looking the specific plea by her that she came into possession immediately on the death of Arasoji Rao in the year 1945. He would also contend that the plea in paragraph 22 of the plaint is sufficient to hold that the suit was barred by limitation. He would submit that even otherwise, the contents of Ex.P-3 proved the duration and period of possession of said property by Smt.Manubai and as such, there was open, hostile and an uninterrupted possession of the suit schedule property since 1961 and thereby he had perfected his title and possession by adverse possession and non consideration of this evidence has resulted in great prejudice to the appellant.

5. He would further contend that suit schedule property being different from the property gifted to third defendant, has not been considered by the trial Court in proper perspective and as such, the finding recorded by 11

trial Court that immovable property involved in the suit and the property gifted to third defendant under gift deed dated 05.10.1961 -Ex.P3 are one and the same is erroneous and liable to be set aside. He would draw the attention of the Court to the evidence of the Court Commissioner - P.W.2 whereunder he has admitted that Gavimutt is outside the suit schedule property but the sketch Ex.P-7 prepared by the Commissioner would indicate that it is within the suit schedule property and this inconsistency has been completely ignored by the trial Court. He submits that trial Court has not taken note of the objections filed by third defendant to the Commissioner's report - Ex.P-20 and as such, the judgment and decree passed by trial Court by accepting the Commissioner's report is an erroneous finding based on improper appreciation of evidence. 12

6. He would further contend that non examination of legal heirs of defendants-4 and 5 was not fatal to the defence of third defendant and trial Court ought to have taken note of the written statement filed by defendants-4 and 5 into consideration. He submits that all alleged Trustees are not made parties to the suit and hence the frame of the suit is improper and same is not maintainable. On these grounds, he seeks for allowing the appeal and setting aside the judgment and decree passed by trial Court. CONTENTIONS RAISED ON BEHALF OF

RESPONDENTS (PLAINTIFFS) 1, 2, 3 AND 5

7. Per contra, Sri S R Goutham, learned Advocate appearing on behalf of respondent Nos.1 to 5 would support the judgment and decree passed by the trial Court. He contends that land measuring 2 acres 18 guntas in Sy.No.14 was purchased by late Arasoji Rao 13

under a registered sale deed dated 22.06.1938 - Ex.P- 13 and during his life time he had executed a Will on 17.07.1945 which document came to be marked as Ex.P-2. Under the said Will, he had bequeathed the suit schedule property amongst others to the Trust named as 'Arasoji Rao Charities' and had appointed his two sons-in-law namely, defendant No.1 and 2 as executors of the Will. He had also nominated the trustees under the Will dated 17.07.1945 - Ex.P-2 and plaintiffs are the predecessor in title and as such, plaintiffs names are not found in Ex.P-2. Hence he contends that third defendant cannot contend that plaintiffs are not trustees or suit cannot be maintained by them. He submits that Arasoji Rao has nowhere stated in the Will that his family members alone should be the Trustees. He contends that undisputedly the executors obtained probate of the Will as per Ex.P-1 and as such, legal possession of suit schedule property was 14

with the executors. The said executors after obtaining the probate on 01.04.1947 handed over the property bearing No.9, East End Road, Bangalore on 16.11.1947 to the Trust and other immovable properties were not handed over which they were bound to do. The said executors were also named as Trustees in the Will dated 17.07.1945 executed by late Arasoji Rao and as such, they are not only executors but trustees for the specific purpose mentioned in the Will.

8. He would contend that 5th defendant cannot have any better title than what his predecessors had. He would draw the attention of the Court to the written statement filed by fourth defendant whereunder she has admitted that property gifted by her along with fifth defendant in favour of third defendant is the suit schedule property and as such, there cannot be any dispute with regard to the identity of the property. 15

9. He would contend that undisputedly late Arasoji Rao did not acquire or possess any other property other than the suit schedule property under the sale deed dated 22.06.1938 - Ex.P-13 and as such there cannot be any other property which could have been gifted by Smt.Manubai and fifth defendant in favour of third defendant other than the suit schedule property. He would draw the attention of the Court to the description of the property in the gift deed Ex.P-3 wherein it has been stated that to the western side of 'D' schedule the gifted property lies and whereas, in item No.10 of the registered Will dated 17.07.1945 - Ex.P-2 to the West of 'D' schedule, it is mentioned as Gavimutt and only with an intention to knock off the suit schedule property defendants-4 and 5 have attempted to give improper description of the suit schedule property though it is admitted in the written statement 16

filed by third defendant that property involved in the gift deed and the Will are one and the same. He would contend that a reference has been made in the gift deed that under a settlement deed dated 29.04.1943 title has been acquired by late Arasoji Rao which document has not seen the light of the day and which was required to be produced by the defendants, though not produced, plaintiffs have sought for production of the said document by way of additional evidence and marked as Ex.P-22 which would clearly indicate that what has been settled under the deed of settlement in favour of the fourth defendant are the properties situated in Gandhinagar, Aralepet (3 items) and perusal of the same would indicate that there is no such settlement made by late Arasoji Rao in favour of Smt.Manubai - the fourth defendant and on this ground alone, the claim of defendants-4 and 5 and now claimed by third defendant by virtue of the gift deed dated 05.10.1961 - 17

Ex.P-3 would fall to the ground. Hence, he prays for dismissal of the appeal and seeks for affirming the judgment and decree passed by the trial Court.

10. Having heard the learned Advocates appearing for parties and perusal of judgment and decree passed by the trial Court as also records secured from the trial Court, I am of the considered view that following points would arise for my consideration: (1) In view of

I.A.I/2013 filed by

respondents-22, 24 to 28

seeking production of

additional evidence having

been allowed, whether appeal

in question requires to be

remitted back to the trial

Court in its entirety or in part

or this Court itself can

examine the said additional

evidence?

(2) Whether the suit

as brought by the plaintiffs

was not maintainable on

account of all the Trustees

having not been made parties

to the suit?

(3) Whether late Sri B

Arasoji Rao had bequeathed

the suit schedule property in

favour of the Trust created by

him and known as 'Arasoji

Rao Charities' under the Will

dated 17.07.1945 - Ex.P-2?

(4) Whether the suit in

question is barred by

limitation?

Whether trial Court was

justified in rejecting the plea of third defendant that Article 59

of the Limitation Act, 1963 is

not attracted but in view of

section 10 of the Act the suit

was not barred by limitation?

(5) Whether the trial

Court was justified in

decreeing the suit by

accepting the evidence

tendered by the parties?

Whether there has been

non-consideration of material

evidence available on record or

erroneous appreciation of

evidence by the trial Court?

(6) What order?

In order to answer the points formulated hereinabove, I am of the considered view that the factual aspects, pleadings of the parties, issues framed and the findings recorded thereon requires to be narrated and as such they are narrated herein below under the respective heads.

FACTUAL MATRIX

11. Plaintiffs claiming to be the Trustees of B Arasoji Rao Charities sought for declaration that the gift deed dated 05.10.1961 executed by Smt.Manubai (fourth defendant) and her foster son Sri Satyanarayana (fifth defendant) in favour of Sri Keshava Pai (third defendant) is void, illegal and does not bind the plaintiff's Charities and also for possession of the plaint schedule property from third defendant and such of the defendants. It was contended that Sri B Arasoji Rao, 20

philanthropist and a timber merchant was the owner of the suit schedule property having purchased the same under a registered sale deed dated 22.06.1938 and during his life time, he executed a Will dated 17.07.1945 by getting it duly registered, whereunder he made various bequests and endowed both movable and immovable properties for public charitable purposes as specifically mentioned in the Will and constituted a Trust called as 'B.Arasoji Rao Charities' and had appointed defendants-1 and 2 as executors whose duty was to handover possession of these properties to the charities i.e., to the trustees mentioned in the Will and carry out the wish of the testator. Though the executors took possession and applied for the probate of the Will in Misc.No.75/1946-47 on 01.04.1947 the suit schedule property was not handed over and defendants- 1 and 2 continued to be the executors who are none other than son-in-laws of B.Arasoji Rao. The mother-in- 21

law of defendants-1 and 2 along with her foster son having executed a gift deed in favour of third defendant on 05.10.1961 and purported to have given possession which was a collusive transaction in collusion with defendants-1 and 2 and as such, declaration to declare the gift deed dated 05.10.1961 was void and not binding on the plaintiff - trustees came to be filed along with prayer for possession. On service of suit summons defendants-1 and 2 filed their written statement independently. They denied the averments made in the plaint and contended that the original trustees themselves took possession of the suit schedule property with connivance of the executors. First defendant contended that he had resigned from the trusteeship in the year 1947 itself and claimed his ignorance with regard to election of plaintiffs as trustees. He pleaded his ignorance with regard to execution of gift deed by defendants-4 and 5 in favour of 22

third defendant. Other averments made in the plaint came to be denied. Defendants-2,3 and 4 also filed written statement denying the averments made in the plaint. On the basis of pleadings of the parties, trial Court framed issues for its adjudication. On account of the identity of the suit property being challenged by third defendant, Deputy Director of Land Records, Bangalore was appointed as a Court Commissioner, who inspected the suit property, submitted a report which came to be marked as Ex.P-20. On behalf of the plaintiffs, one of the trustees was examined as P.W.1 and Court Commissioner was examined as P.W.2. Except fourth defendant's special power of attorney holder, none entered the witness box on behalf of other defendants. On evaluation of oral and documentary evidence, trial Court decreed the suit by declaring that gift deed dated 05.10.1961 executed by defendants-4 and 5 in favour of third defendant as null and void and 23

not binding on the plaintiffs and also held that plaintiffs are entitled for possession of suit schedule property. It is this judgment and decree which is questioned in the present appeal by third defendant alone. Other defendants have not questioned the same. PLEADINGS OF THE PARTIES

12. Plaintiff instituted a suit against defendants for the relief of declaration for declaring that the gift deed executed by Smt.Manubai and Sri A Satyanarayana dated 05.10.1961 in favour of third defendant as void, illegal and does not bind the plaintiff's charities, for possession of plaint schedule property and costs of the suit. It was contended that suit schedule property was the absolute property of Sri B Arasoji Rao and he had purchased the same under a sale deed dated 22.06.1938 and during his life time he had executed a Will dated 17.07.1945 and had got it 24

duly registered, whereunder, he made various bequests and endowed the movable and immovable properties for public charitable purposes and constituted a trust thereof called as "B.Arasoji Rao Charities" . The suit schedule property was one of the property bequeathed to the Trust and possession was handed over by the executors. It was contended that wife of late B. Arasoji Rao and mother-in-law of defendants -1 and 2 along with Sri A Satyanarayana, son of first defendant and foster Son of B Arasoji Rao have executed a gift deed in favour of third defendant and they had no right, title or interest to gift the same to third defendant and same is void and illegal. On these grounds amongst others, they sought for suit being decreed.

13. First defendant filed the written statement and denied the averments made in the plaint. It was contended that the very title relating to the suit 25

schedule property claimed by the testator was in dispute and the bequest made by him failed and as such the executors could not hand over to the trustees the property owned and possessed by the testator himself at the time of his death. The original trustees permitted Smt.Manubai to enter upon the suit schedule property to build Samadhi, Choultry, Buildings, Well, Compound, etc., in memory of her husband and virtually handed over possession of entire property to her and as such, she put up the construction. Original trustees failed to take possession of suit schedule property and to have them under their control. On account of negligence and failure of their duties as trustees, Smt.Manubai had put third defendant in possession of entire property under the gift deed. All other averments made in the plaint came to be denied. 26

14. Second defendant had filed independent written statement and denied the averments made in the plaint. It was admitted that properties referred to and set out in the Will of late Sri Arasoji Rao was bequeathed in favour of the Trust. Owing to the negligence on the part of persons in management in the Trust and to cover up their latches and lapses, suit in question has been filed. Suit was not maintainable for want of all Trustees not been made as parties. On account of the suit filed by second defendant in O.S.No.27/1956 exposing the negligence of the Trustees and to cover up their lapses, suit in question was filed.

15. Third defendant has filed written statement contending that under a gift deed dated 05.10.1961 under which possession was delivered to him, the possession and enjoyment of suit schedule property is with the third defendant and till that date, it was in the 27

possession of fourth and fifth defendants, ever since Sri Arasoji Rao's death on 30.09.1945. Averments made in the plaint with regard to Trustee's ship, etc, came to be denied. The suit property which was bequeathed by Sri Arasoji Rao under the Will dated 17.07.1945 to the Trust is different from the property covered under the registered gift deed dated 05.10.1961. It was also contended that the suit was barred by limitation. Third defendant also claimed adverse possession. All other averments made in the suit came to be denied.

16. Fourth defendant filed her written statement and contended that suit schedule property belonged to her husband and was bequeathed to her and her adopted son. She specifically contended that subject matter of the Trust created under the Will does not include the suit schedule property. Suit schedule property has been in her and fifth defendant's 28

possession ever since the date of demise of her husband till she executed gift deed dated 05.10.1961. she contended that she has executed the gift deed along with fifth defendant out of free will. She also contended that the property covered under the registered gift deed dated 05.10.1961 is different from the property described as item 3 in schedule-D at paragraph 10 of the registered Will dated 17.07.1945. All other averments made in the plaint also came to be denied.

17. A reply came to be filed to the written statement by the plaintiffs contending interalia that even if they are defacto trustees which is admitted by defendants-1 and 2, the suit is maintainable. It was also contended that the suit schedule property which is claimed to have been gifted by fourth defendant to the third defendant is none other than the property bequeathed by late Sri Arasoji Rao to the Trust. 29

Defendants-1 and 2 had been named as executors of the Will of Sri Arasoji Rao and they are charged with the obligation to hand over and deliver possession of the immovable property bequeathed by the testator in favour of the Trust. On account of defendants-1 and 2 failing to deliver possession of the suit schedule property to the trustees in terms of the Will the suit in question had been filed. In the suit O.S.No.27/1956 the second defendant herein was the plaintiff and he had prayed among other things that trustees of B Arasoji Rao Charities be removed and new trustees be appointed, a finding came to be recorded that plaintiff therein (second defendant herein) had not made out the case for removal of the said trustees and they were validly elected acts as a bar for considering the claim of defendants in the present suit. It was also contended that possession of the suit schedule property by fourth defendant was purely permissive and gratitious since 30

she was let into possession by defendants-1 and 2 who are none other than the executors of the Will and third defendant who claims to be donee under the gift deed executed by fourth defendant cannot claim adverse possession since it was a collusive transfer without any valuable consideration. It was also further contended that in view of the clear intentions of the testator in the Will that entire net balance amount due to the estate of late B Arasoji Rao from his timber business in the city Saw Mills should go to the said charities created by him, defendants cannot contend that suit for possession of the land bequeathed together with the buildings erected thereon since the amount of Rs20,000/- diverted unauthorisedly from the said business income of the Saw Mills which formed part of the amount due to the charities and same having been diverted by the fourth defendant to put up building in the suit schedule property, suit in question was maintainable and also 31

the contention that what was bequeathed by Arasoji Rao was only schedule land and not buildings erected thereon is against law and facts and such a plea is not maintainable. By way of alternate plea it was contended that in the event of first defendant's plea is accepted, alternatively decree against the defendants for possession with a direction to the defendants to remove the structures including the building put up unauthorisedly be granted.

18. On account of amendment of written statement by second defendant and incorporating paragraphs 2A to 2D which related to all the trustees having not been made as parties and to cover up the misdeeds and misconduct of the present plaintiffs and as such suit was bad for misjoinder and non-joinder of parties came to be replied by the plaintiff by filing a rejoinder contending interalia that second defendant 32

and his co-brother late Sri V Ramachandra Rao were the executors of the Will and they had obtained probate of the Will and in order to escape his accountability, second defendant has amended the written statement making baseless allegations against the plaintiff - trustees. It was also contended that second defendant along with his co-brother had obtained the probate of the Will and took possession of all the properties including the suit schedule property . It was contended that in the proceedings initiated by the second defendant in O.S.No.27/1956, Misc.No750/1982, Misc.No.781/1982 and Misc.No.745/1985 it has been held that the conduct of Trustees are blemish less and as such they denied the averments made in the amended paragraphs of the written statement.

19. On the basis of pleadings of parties, trial Court framed the following issues for its adjudication. 33

1) "Whether the plaintiffs are the legally appointed trustees of B.Arasoji Rao Charities?

2) Whether the plaintiffs are competent to file this suit?

3) Whether the suit property is also a subject matter of the Trust created by late Arasoji Rao in his Will?

4) Whether the gift deed in favour of 3rd defendant invalid?

5) Whether the suit is barred by limitation?

6) Whether the plaintiffs are entitled to the declaration and possession

sought?

7) What order?

8) Whether the plaintiff's suit is barred by adverse possession?

Addl.Issues:

1) Whether the 3rd defendant proves that he is in adverse possession and has perfected his title by adverse possession to the plaint schedule

property as required under law?

2) Whether the suit is bad for non- joinder of necessary parties?"

20. On behalf of the plaintiffs two witnesses were examined and 20 documents were got marked as Exhibits P-1 to P20. On behalf of third defendant power of attorney holder was examined as DW-1 and special power of attorney was got marked as Exhibit D-1. After considering the pleadings of the parties and on appreciation of both oral and documentary evidence trial court decreed the suit.

FINDINGS RECORDED BY THE TRIAL COURT

21. Trial court on appreciation of evidence has held that late Sri.Arasoji Rao had purchased the suit schedule property under sale deed dated 22.06.1938 35

Exhibit P-13 and during his life time he has executed a Will dated 17.07.1945 Exhibit P-2 bequeathing the same in favour of the trust created by him under the said Will known and called as `Arasoji Rao Charities'. It has also been held that his two sons-in-laws namely defendants 1 and 2 as the executors of the said Will apart from nominating the trustees. Plaintiffs have been subsequently nominated as trustees and on this ground it has been held that third defendant cannot contend that plaintiffs are not trustees or suit cannot be maintained by them. It has also been held that the said Will has been probated as per Exhibit P-1 and the executors having not handed over the trust property to the trustees to which defendants 1 and 2 were also the trustees the suit in question having been filed for declaration and possession of the trust property is just and proper. Trial court has further held that the defendant No.3 has not disputed that plaintiffs are not 36

trustees. Defendants 1 and 2 having not denied that plaintiffs are not trustees and having contended that they are not properly elected trustees did not enter the witness box. Infact it has been further noticed by the trial court that in the suit O.S.27/1956 filed by defendant No.1 and 2 they have described the present plaintiffs in the said suit as trustees. On these grounds it has been held that the suit filed by the plaintiffs as trustees was maintainable.

22. On the issue of identifying the suit schedule property and tracing it to the Will dated 17.07.1945 Exhibit P-2 of late Sri.Arasoji Rao it has been held that the testator had purchased the suit schedule property under sale deed dated 22.06.1938 Exhibit P-13 and bequeathed the same in favour of the trust created by him, known and called as `Arasoji Rao Charities'. It has also been held that when the said property is 37

bequeathed in favour of the trust defendants 4 and 5 could not have claimed any title to the said property under the very same Will.

23. Though defendant No.3 contended that what has been gifted by defendants 4 and 5 is a different property from the one bequeathed by Sri.Arasoji Rao in favour of the trust, no material evidence came to be produced to establish that the donors had acquired title to the suit property under any other document. In the absence of establishing the said fact and on account of the donors stating in the gift deed dated 05.10.1961 Exhibit P-3 that they acquired title to the suit property under the Will 17.07.1945 Exhibit P-2 is factually incorrect, trial court did not accept the version putforth by the third defendant.

24. On account of identity of the suit property being disputed, a court commissioner was appointed and after inspecting the suit property by issuing notice to the parties has submitted a report as per Exhibit P- 20 and was examined as PW-2 wherein he has stated that he has identified the suit property on the basis of the Will dated 17.07.1945 Exhibit P-2 and gift deed dated 05.10.1961 Exhibit P-3. The trial court has also found that the sketch prepared by the Commissioner as per Exhibit P-7 would indicate that all the memo of instructions has been answered by the Commissioner and as such the finding recorded in the report is to be construed as opinion and on evaluation of the same it came to be accepted. It has also been held by the trial court that a stray sentence in the evidence of Commissioner that Gavimutt is outside the suit property cannot be regarded as a discrepancy to discard the report.

25. On the issue of limitation it has been held that the suit property was bequeathed by late Sri.Arasoji Rao in favour of the trust created by him under the said Will and same being a trust property and to recover the same there is no prohibition under the Limitation Act in view of Section 10 and as such it has been held that Article 59 of the Limitation Act is not applicable.

For the reasons aforestated trial court decreed the suit.

RE: POINT NO.(1):-

26. The judgment and order passed in Misc.No.750/1982 and Misc.No.781/1982 had been produced before the trial Court by the learned Advocate appearing for the plaintiff and it was taken on record, as could be seen from the trial Court records. The said document came to be produced along with a memo 40

dated 02.06.1997. In fact, P.W.1 has stated in his examination-in-chief dated 02.08.1995 about the said suit having been filed by Sri S.N.Subba Rao, second defendant (suit in question) and trial Court in the course of its judgment has also referred to these suits. To examine as to whether the suit schedule property was a trust property or otherwise, the said document is being examined by this Court. Second defendant Sri Subba Rao does not dispute the fact of filing the said suits. In the said suit the rights of the trustees having been examined, this Court is of the considered view that it would throw light on the points formulated for adjudication and same being a matter of record, this Court in exercise of the appellate power can examine the said document and as such, remitting the appeal to the trial Court would not serve any purpose. 41

27. The settlement deed dated 29.04.1943 which has been produced by way of additional evidence and now marked as Ex.P-22 finds a reference in the gift deed dated 05.10.1961 (Ex.P.3) . To find out as to whether the suit schedule property is different and distinct from the properties referred to in the gift deed and for the said limited purpose, it has been received in evidence and this Court in exercise of its power of appellate jurisdiction not being precluded from examining it, is of the view that it can be considered in this appeal without remitting the matter back to the trial Court as it would not change the factual position. The contents of the documents would speak for itself. In view of Section 92 of the Evidence Act, any amount of oral evidence contrary to the recitals in the registered documents will not be eschewed by the Court. For said reason also, this appeal is not being remitted back to the trial Court either in part or wholly.

Hence, Point No.(1) is answered in the negative i.e., in favour of the plaintiffs and this appeal is not remitted back to the trial Court.

RE: POINT NO(2):

28. Trial Court has formulated three issues relating to this point, namely:

(1) Whether plaintiffs are legally appointed trustees of B.Arasoji

Rao Charities?

(2) Whether plaintiffs are competent to file this suit?

(3) to (8) xxxx

Addl.Issues:

(1) xxx

(2) Whether the suit is bad for non joinder of necessary parties?

Issue Nos.1 and 2 has been answered in the affirmative and additional issue No.2 in the negative by the trial Court.

29. The claim of the plaintiffs to the suit schedule property originates from the Will dated 17.07.1945 which came to be marked as Ex.P-2. It is the contention of the plaintiffs that the testator of the Will namely, Sri Arasoji Rao created a Trust under the said Will and bequeathed the properties mentioned therein to the said Trust. It has been contended that plaintiffs and defendant No.6 are the Trustees. It was further contended that five out of the seven Trustees named in the Will are dead and remaining two Trustees named in the Will i.e., defendants-1 and 2 have since resigned are alive. It is also contended that plaintiff No.1 was elected as Trustees in 1962 and other plaintiffs 2 to 7 have been subsequently elected and are the persons to whom right as trustees has survived.

30. The execution of the Will dated 17.07.1945 - Ex.P-2 by late B Arasoji Rao is not in dispute at all. The 44

testator under the said Will has created a Trust known and called as 'B.Arasoji Rao Charities'. Under the said Will, the testator has appointed defendants-1 and 2 as executors of the Will. The property described as item No.10 in the Will has been bequeathed to the Trust. It is not in dispute that defendants-1 and 2 had applied for probate of the said Will in Misc.75/1946-47 on the file of District Judge, Bangalore and obtained probate of the Will as per Ex.P-1. This would clearly indicate the execution of the Will dated 17.07.1945 by late B.Arasoji Rao and defendants-1 and 2 being the executors of the said Will. It would also indicate that the executors have undertaken to administer the immovable properties described in schedule - 'A' thereunder which are four in number. Item No.4 relates to dry land measuring 2 acres 15 guntas situated at Magadi Road, Jadehalli village. It is this property which is claimed by the plaintiffs to be the suit schedule property. 45

31. Defendants - 1 and 2 have filed independent written statement. It has been contended that plaintiffs are only Trustees defacto and not dejure. Second defendant in his written statement contend that plaintiffs - 1 to 7 and 6th defendant are not duly elected and legally appointed Trustees. It is however admitted that they are in actual control and management of the said Trust - Estate. He has further contended that late Sri Y Nageshrao Maney was the Chairman of the Board of Trustees and as such, was administering the properties in collaboration with Smt.Manubai, w/o of late Sri Arasoji Rao. He has further contended that the suit has been filed who have entered into management as so called Trustees only from the year 1962 onwards.

32. Third defendant in his written statement filed has contended that averments made in paragraphs 11 to 14 of the plaint (which relates to Trustees ) are to 46

be answered by defendants-1 and 2. In other words, third defendant has not traversed the averments made in the plaint in this regard. It is to be noticed at this juncture itself that the present appeal is filed by third defendant alone and defendants-1 and 2 have not challenged the judgment and decree passed by the trial Court.

33. Order XXXI Rule (2) mandates where there are several Trustees, they shall all be made parties to a suit against one or more of them. It is not in dispute that a suit O.S.27/1956 had been filed by the second defendant herein against the Trustees, which suit was originally instituted by five persons who were appointed as Trustees of the charitable Trust created by late Arasoji Rao under the Will dated 17.07.1945 - Ex.P-2 after obtaining the sanction of the Advocate General. The said suit was filed for a direction to defendants-1 47

and 2 therein to render true and correct accounts of the monies recovered by them and to pay the same into the Trust funds and for appointment of new Trustees in their place and vesting the Trust in the new body of Trustees by framing a scheme. Second defendant filed an application to get himself transposed as plaintiff and accordingly second defendant was transposed as plaintiff No.6. On an representation made by plaintiffs- 1,2,4 and 5 therein that they did not intend to proceed with the suit and they had no interest on account of demise of third plaintiff, it was accepted and plaintiff No.6 continued with the suit. The said suit on adjudication came to be dismissed. Plaintiffs in the present suit and 6th defendant were impleaded as defendants-4 to 11 in the said suit. The judgment and decree passed in O.S.No.27/1956 has been marked as Ex.P-5. Defendants - 1 and 2 have nowhere contended that plaintiffs are not Trustees. On the other hand, they 48

admit that plaintiffs and defendant No.6 are defacto Trustees and not dejure Trustees. Neither the fourth defendant nor the fifth defendant or his L.Rs have entered into the witness box to substantiate the defence set up by them in their written statement. Defendants- 1 and 2 have also not entered the witness box. Taking these aspects into consideration, trial Court has rightly come to the conclusion that the only contesting defendant being defendant No.3 and he having not taken any plea in his written statement denying the fact that the plaintiffs are duly constituted Trustees, it has not accepted the plea of the third defendant that all the Trustees are not made parties to the suit and as such, suit was not maintainable. In other words, said plea of third defendant was not accepted by trial Court and rightly so. This fact is also fortified by Ex.P-21 namely, Order passed in Misc.No.750/1982 r/w Misc.No.745/1985 which proceedings was initiated by 49

the sons of the second defendant in the present suit along with others for removal of the present Trustees. This itself would clearly indicate that the plaintiffs were duly appointed Trustees of Arasoji Rao Charities and in that capacity, they have instituted the present suit. It is also to be noticed that the defendants having taken a stand that all the Trustees are not made parties to the suit, have not specified or stated as to who are all the other Trustees of the said Trust who were required to be made parties. There is absolutely no pleading in this regard and they have utterly failed to place any material before the Court below to accept such a contention and as such, the Court below was fully justified in arriving at a conclusion that plaintiffs are legally appointed Trustees and are competent to file the suit. Hence, point No.(2) is answered in favour of the plaintiffs and against third defendant.

RE: POINT NOS.(3) & (5):

34. Since these two points are inter linked, they are taken up together for consideration.

35. It has been the specific case of plaintiffs that late B.Arasoji Rao had bequeathed the suit schedule property in favour of the Trust created by him under the Will dated 17.07.1945 which came to be marked as Ex.P-2. Defendants do not dispute the execution of the said Will by late B.Arasoji Rao. However, the contention of third defendant is that the property bequeathed by late B.Arasoji Rao under Ex.P-2 is entirely different from the property gifted by defendants-4 and 5 in his favour under a gift deed dated 05.10.1961 - Ex.P-3. The plea raised by third defendant in this regard is at paragraph 10 of the written statement and it reads as under: "Since the suit property

described as having been allotted

to the Trust in the Registered Will of deceased B.Arasoji Rao dated

17.07.1945 is definitely different from the property covered by the

Registered Gift Deed dated

05.10.1961 the plaintiff cannot

press into service Sec.10 of the

Limitation Act, which does not

apply to the facts of the instant

case, in order to save the bar of

limitation in the manner intended

by the plaintiffs."

36. Sri B Arasoji Rao acquired title to the property bearing Sy.No.14 measuring 2 acres from Sri Subbaiah under a registered sale deed dated 22.06.1938 registered as No.4396, Book I, Volume 432, pages 174 to 176 for a consideration of Rs.600/-. The said sale deed came to be produced by the plaintiffs and was marked as Ex.P-13. The description of the boundary as per the said sale deed is as under: East by : Cheluvaiah's land

West by : Boundary of land

surrendered to Gavimutt

and Cheluvaiah's land.

North by : Laggere road and border of 52

Kethumaranahally.

South by : Land retained by us and Land belonging to

Munikrishnappa.

37. Defendant No. 4 along with fifth defendant had gifted the land to third defendant. In the written statement filed by fourth defendant she has specifically contended to the following effect: "3. Under the registered Will of

my deceased husband referred to

in the plaint, the plaint schedule property belonging to him and in

his possession was bequeathed to

me and our adopted son Satyanarayana (5 defendant in

this suit). It was not the subject matter of the trust created under

that "ill to any extent. Therefore, the plaintiffs cannot lay any

claim thereto for and on behalf of the said trust.

38. The gift deed executed by defendants-4 and 5 in favour of third defendant came to be marked before trial Court as Ex.P-3. A perusal of the same would 53

indicate that donors (fourth and fifth defendant) having stated that they are the full and absolute owners of the property being gifted describing the said property as a "concrete construction on the site situated and forming part of kagadi road, now attached to Rajajinagar, towards the West of the 'D' schedule property mentioned in item No.(10) in the registered Will dated 17.07.1945". The donors (defendant Nos.4 and 5) have also referred to a deed of settlement dated 29.04.1993 executed by the mother of fifth defendant on 29.04.1943 which admittedly was not produced by either of the parties before the trial Court. Even otherwise, the said document may not have any relevance inasmuch as, it relates to settlement deed executed by Sri B Arasoji Rao in favour of his wife and children , the copy of which has been filed by the learned counsel appearing for plaintiffs during the course of the argument and it would indicate that there is no reference to the property 54

bequeathed by Sri B Arasoji Rao under the Will dated 17.07.1945 in favour of the charities, in the said settlement deed. It would also be necessary to note that fourth and fifth defendants are not claiming that late B.Arasoji Rao had purchased the property gifted by them in favour of fourth defendant under a sale deed other than the sale deed dated 22.06.1938 - Ex.P-13. The schedule of the property which has been gifted by fourth and fifth defendant under Ex.P-3 in favour of third defendant reads as under:

"All the piece and parcel of

the land forming part of

Jadihalli, Bangalore North Taluk

(Magadi Road, near Gavimutt,

Rajajinagar, Bangalore)

comprising of a reinforced

concrete building behind the

Samadhi of late Sri B Arasoji

Rao and bounded on the East

by Subbaiah's land, West by

Halla, South by a small passage

facing the gate of this schedule

property and North by

Gavimutt, together with Well,

compound, formed itself by

means of rocky places and

shrub growth, and (exclusive of

Samadhi forming part of the

scheduled property) including

two latrines and bathroom

erected recently - valued about

Rs.9,000/- (Rupees Nine

thousand only).

39. What has been bequeathed by late B.Arasoji Rao in favour of the charities under the Will - Ex.P-2 is item No.III. Perusal of Ex.P-2 would indicate that an area measuring 2 acres 18 guntas has been bequeathed under the said Will in favour of "Arasoji Rao Charities". Said property is described as item No.III of 'D' schedule. The description of the property as stated in Ex.P-2 reads as under:

"Land situated in Magadi

Road, Jedahalli of Gavimutt

bounded on East by Cheluvaiah's

land, West by Charity land, North

by Laggere road, South by land

belonging to B.A.Subbaiah,

measuring 2 acres 15 guntas and

approximately valued at

Rs.1,000/-."

40. Since the defendants contended that the description of the property in the Will - Ex.P-2, property purchased by Sri B Arasoji Rao on 22.06.1938 as per Ex.P-13 and the property gifted by defendants-4 and 5 to third defendant under the gift deed dated 05.10.1961 - Ex.P-3 are different and they also do not tally with the description of plaint schedule, it would be apposite to tabulate the schedule described in the respective documents for better appreciation and understanding of the contentions raised by the learned Advocates and to ascertain as to whether they are one and the same property or different property. Hence, it is tabulated herein below:

As per sale deed As per Will As per Gift Plaint dated 22.06.1938 dated deed dated schedule (Ex.P-13) 17.07.1945 05.10.1961 (Ex.P-2) (Ex.P-3)

North Laggere road and Laggere road Gavimutt Track border of leading to Kethuramaranahally Laggere 57

South Land belonging to Land Small B.S. Munikrishnappa belonging to passage Subbaiah's and land retained Subbaiah facing the Land by Subbaiah gate East Cheluvaiah's land Cheluvaiah's Subbaiah's Cheluvaiah's land land land

West Land surrendered to Charity land Halla Charity land Gavimutt and

Cheluvaiah's land

41. On account of the property purchased by late B.Arasoji Rao under sale deed dated 22.06.1938 - Ex.P- 13 having undergone changes on account of the development in and around the said property and defendants - 4 and 5 also contending that what has been gifted to third defendant is not the suit schedule property which has been bequeathed by B. Arasoji Rao in favour of the charities, the trial Court had appointed Assistant Director of Land Records, Bangalore (ADLR) as Court Commissioner who has inspected the spot, prepared a sketch and submitted his report to the Court. The said Court Commissioner came to be examined on behalf of the plaintiffs as P.W.2 and 58

through him, the sketch prepared by the Commissioner along with the report came to be marked as Ex.P-7 and P-20. He has stated in his evidence that he has identified suit property and has shown the same in the sketch Ex.P-7. Perusal of the said sketch would indicate that the suit schedule property has been identified and delineated as "ABCDEFGHI" and the area shown is 2 acres 15 guntas.

42. It is the specific contention of the defendants-4 and 5 that they acquired title to the property which has been gifted by them to third defendant under gift deed dated 05.10.1961 - Ex.P-3 that they acquired title to the said property under the Will dated 17.07.1945 wherein the recitals of deed of settlement dated 29.04.1943 came to be confirmed. In the said gift deed they have stated as under: "Whereas, the donors above

named are the full and absolute

owners of a reinforced concrete

construction on the site situated

towards the west of 'D' schedule

property mentioned in item

No.(10) in the registered Will

dated 17.07.1945 registered as

Book III, Volume 21, pages 226-

243 in the office of the Sub-

Registrar of Bangalore City more

fully described in the schedule

hereunder, whereas the husband

of the first donor above named

i.e., 1(a) bequeathed the properties mentioned in the

above said Will dated 17.07.1945

on which date the testator has

given full liberties and consent

that the second donor i.e. 1(b)

above named who is the daughter's son is being treated as their adopted son and has

devised all the properties specified as per recitals of the

said Will thus, confirming the

deed of settlement dated 29.04.1943 executed by her and

registered as No.2837, Book I,

volume 626, pages 211 to 218

and by means of both the said

instruments, the donors i.e., both defendant 1(a) and 1(b) above

named have been in possession

of schedule property absolutely

without any let or hindrance or

interruption whatsoever."

Thus, it would emerge from the above facts that what was claimed by the plaintiffs on the one hand and defendants - 3, 4 & 5 on the other hand, is the land or property belonging to late Sri B Arasoji Rao acquired by him under a sale deed dated 22.06.1938 - Ex.P-13 and he having bequeathed the same under a Will dated 17.07.1945 - Ex.P-2 and there cannot be any other property. As such, the recitals found in the Will relating to the property which is claimed by both the parties would acquire significance and it would have a direct bearing and impact on the rival claims. The said Will dated 17.07.1945 is marked as Ex.P-2 . The said Will has been probated by the jurisdictional District Court in Misc.Application No.75/1946-47. On a petition presented by Sriyuths V Ramachandra Rao and S N Subba Rao who are defendants - 1 and 2 in the suit in question namely, O.S.No.402/1980 (which is in appeal 61

now) they had been appointed as executors under the aforesaid Will by late B Arasoji Rao. In fact, in the written statement filed by the first defendant, it is admitted that the land measuring 2 acres 15 guntas is the plaint schedule property. The said admission is to the following effect:

"(c) The third immovable

property, i.e., the vacant land measuring 2 acres 15 guntas situate in Jedahalli, mentioned in the plaint schedule was taken possession of by the original trustees themselves appointed by the testator. Late Sri Nagesh Rao Mane xxxx with the

connivance of the executors."

Further, at paragraph 9(b) it has contended that the original trustees permitted Manubai (fourth defendant) to enter upon the suit schedule property and the pleading in this regard is to the following effect; "9(b): Having themselves entered

upon the land bequeathed to the

charities and taken possession thereof, the original trustees succumbed to the 62

wishes of Manubai to permit her to enter upon it and have a Samadhi,

choultry, buildings, Well, compound, etc, constructed thereon out of the estate money of Sri B Arasoji Rao in reverential memory of her husband. The original trustees represented by their Chairman Nagesh Rao Mane

thought that it would be for the good and benefit of the Gavipur Mutt

Charity of which also they had been appointed as trustees under Arasoji Rao's Will, if Manubai constructed Samadhi and other buildings as

intended by her. They virtually handed over possession of the entire property to her and allowed her to carry on the constructions as per her wishes. The trustees xxx under their control. They allowed Manubai to remain in possession and control of all the structures and buildings put up by her. Later on xxx property in question.

43. It requires to be noted at this juncture itself that in the schedule to the gift deed while describing the property that is being gifted, the measurement of the property that is being gifted under the said deed, nothing is mentioned. As already observed herein above, 63

to examine the rival claims, recitals in the Will - Ex.P-2 will have to be examined.

44. A perusal of the Will Ex.P-2 would indicate under clause 5 the testator intended to create a charitable trust and bequeath certain movable and immovable properties. He has also appointed seven persons as trustees which includes the first defendant and second defendant amongst others. Item No.10 is described as 'D' schedule, under which three items have been reflected. Items 1 and 2 pertains to immovable properties situated at Visveswarapuram and Lalbagh Road measuring 2 acres 18 guntas. The description of the said property has already been extracted herein above. Though defendants - 3, 4 and 5 have contended that what has been bequeathed to the charities by deceased Arasoji Rao is a property different from the one which is gifted by defendants-4 and 5 in favour of 64

third defendant, same cannot be accepted for reasons more than one.

i) Undisputedly, as per the recitals found in the gift deed Ex.P-3, defendants-4 and 5 are contending that the property which they are gifting in favour of third defendant had been acquired by them under the Will dated 17.07.1945 - Ex.P-2. However, the recital in the Will - Ex.P-2 indicate that what has been bequeathed to Arasoji Rao charities by the testator namely, deceased B Arasoji Rao is the property described as at Sl.No.3 found in 'D' schedule item No.(10) namely, property situated in Magadi Road, Jedahalli village and as more fully described therein. ii) Defendants-1 and 2 have admitted in their written statement that the plaint schedule property is the property which has been 65

bequeathed by late B Arasoji Rao in favour of the charities.

iii) Defendants-4 and 5 as well as third defendant has not been able to demonstrate by producing any evidence to the effect that late B Arasoji Rao had acquired any other property in Jedahalli, Magadi Road other than the property purchased by him under the sale deed dated 22.06.1938 as per Ex.P-

13.

iv) The Court Commissioner namely, ADLR who has visited the site, examined the title deeds produced by the parties namely, Will - Ex.P-2 and gift deed - Ex.P-3 as also the sale deed dated 22.06.1938 Ex.P-13 with reference to entire revenue records has arrived at a conclusion that what has been purchased by late B Arasoji Rao under sale 66

deed dated 22.06.1938 is the suit schedule property situated in Sy.No.16 of Jedahalli village known as 'Dasashrama' .

v) It is to be noticed that defendants - 4 and 5 have not established by cogent evidence about deceased B Arasoji Rao having acquired title to any other immovable property at Jedahally village other than the suit schedule property.

45. For these reasons and in addition to the reasons assigned by the trial Court, it has to be held that the plaintiffs have proved that the suit schedule property is the immovable property which was purchased by late B Arasoji Rao under the sale deed dated 22.06.1938 - Ex.P-13 and he had executed a Will dated 17.07.1945 - Ex.P-2 by bequeathing the said property in favour of the charities created by him 67

namely, "B.Arasoji Rao Charities" and it is also to be held that he had not acquired any other property in Jedahalli village which can be construed as having been left by him to be succeeded by his class - I heirs namely, defendants-4 and 5.

46. Though Sri Halaswamy, learned Advocate appearing for the third defendant would vehemently contend that suit schedule property being different from the property gifted to third defendant by reiterating the grounds urged in paragraph 10 and 13 of the written statement, it would not detain this Court for a longer time to negative said contention inasmuch as, the claim of third defendant is based on the gift deed executed by defendant Nos.4 and 5 on 05.10.1961 - Ex.P-3. A perusal of Ex.P-3 would indicate that donors therein have traced their title to the suit schedule property and claims to have acquired such title by virtue of the Will 68

dated 17.07.1945 - Ex.P-2. Recitals in Exhibit P-3 would indicate that husband of the first donor i.e., late Arasoji Rao had bequeathed the property mentioned in the Will in favour of defendants 4 and 5 and confirming the deed of settlement dated 29.04.1943 thereunder. As such defendants 4 and 5 claimed that they possessed right to gift the said property. As already noticed herein above, under the Will dated 17.07.1945 - Ex.P-2 executed by late B Arasoji Rao, suit schedule property has not been bequeathed in favour of defendants-4 and 5 but he has created Trust or charity and has bequeathed in favour of the Trust created by him namely, B.Arasoji Rao Charities and as such, the very right of the defendants-4 and 5 to deal with the suit schedule property being unavailable, defendant No.3 cannot claim any better title than what his predecessor in title did not possess. This would also establish the fact that defendants -4 and 5 are not claiming that they 69

47. Sri Halaswamy, learned Advocate appearing for third defendant has contended that the suit was liable to be dismissed on the ground of limitation and 71

Article 59 of the Limitation Act was attracted to the facts on hand since the suit was filed on 27.10.1973 and the gift deed is dated 05.10.1961 and after the expiry of more than 12 years from the date of execution of gift deed, the trial Court ought not to have answered issue No.5 in favour of plaintiffs. He has also contended that plaintiffs have not stated as to when they came to know about the alleged gift deed. Per contra, Sri S R Goutham has contended that Section 10 of the Limitation Act would be attracted to the facts on hand.

48. Article 59 of the Limitation Act prescribes the period of limitation of three years for filing a suit to cancel or set aside an instrument or decree or for the recession of the contract and time begins to run when the facts entitling the plaintiff to have the instrument or 72

decree cancelled or set aside or the contract rescinded first became known to him.

49. Section 10 of the Limitation Act would exclude the period of limitation prescribed under the Act would be applicable when a claim is brought against a person in whom property has become vested in Trust for any specific purpose or against his legal representatives or assigns. In other words, when suit is brought against a Trustee in whose favour the property of the Trust vested it would not be barred by any length of time.

50. In view of the aforestated discussion, the suit schedule property is held to be a Trust property. Under the Will dated 17.07.1945 - Ex.P-2 it has been bequeathed by the Testator by creating a Trust and it has already been noticed by this Court that said property has vested in the Trust. Thus, when the 73

property is vested in the Trust, the Trustees have a right to recover the said property if it is been transferred by such trustees by igniting the proceedings against subsequent transferees and no length of time can prevent recovery of such property.

51. In view of the finding recorded herein above that defendants-1 and 2 were the trustees of late B.Arasoji Rao charities and they were also litigating over the suit schedule property, by no stretch of imagination it can be construed or held that the suit in question filed against such trustees would be barred by limitation. Undisputedly, the defendants-1 and 2 who were required to hand over the property which was in their possession have failed to do so and as such, the suit in question has been filed.

52. Defendants-1 and 2 were not only the executors under the Will - Ex.P-2 but they were also 74

appointed as trustees under the said Will. Thus, the suit schedule property was transferred to the Trust and the probate granted by the District Judge, Bangalore as per Ex.P-1 would indicate that the Will dated 17.07.1945 - Ex.P-2 under which the suit schedule property was bequeathed in favour of the charities vested in the Trust. Under Ex.P-1 the executors were authorised to dispose of the property as per the Will - Ex.P-2 and when the said property went to the hands of executors namely, defendants-1 and 2 who were trustees, an obligation was cast on them to hand over the said property to the charities or to the Trust created by late B.Arasoji Rao. The evidence on record would indicate that the suit property was in the hands of the trustees. Though it vested in the Trust and the trustees being under obligation to handover the said property to the Trust, they had failed to discharge their duty and as such, the suit filed by the plaintiff has to be held as not 75

barred by limitation. In other words, the action brought by the trustees would be protected under Section 10 of the Limitation Act. Though defendants-1 and 2 contend that Smt.Manubai - fourth defendant came into possession of the suit property on the demise of Arasoji Rao, they did not enter the witness box to prove the said fact. As such, the finding recorded by trial Court on issue No.5 has to be held as just and proper conclusion not suffering from any infirmities whatsoever. Hence, point No.4 formulated has to be answered by concluding that the suit filed by the plaintiff is protected by Section 10 of the Limitation Act and trial Court was justified in answering issue No.5 in favour of the plaintiff.

53. Hence, for the reasons assigned herein above, the following order is passed: (1) Appeal is hereby dismissed.

(2) Judgment and decree passed by the trial Court in O.S.No.402/1980 dated 01.08.1997 by I Addl.City Civil Judge, Bangalore is hereby affirmed.

(3) In the peculiar circumstances of the case, parties are directed to bear their respective costs.

(4) Registry to draw the decree accordingly.

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Donee can not claim any better title than what his predecessor in title did not possess

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