SULEGAI DODDA NARAYANA SA Vs. AHANUMANTHAPPA

JUDGEMENT

(1.) The property concerned in this litigation admittedly belonged to one P. R. Hanumanthappa. He is said to have left a registered will dated 22-7-1921 by which he purported to create a trust over it for certain charitable purposes, viz., advancement of education of some orphan boys. By that will he appointed five trustees including his widow defendant 1 who died subsequent to the suit. The other trustees were also dead before the suit was filed. Plaintiffs l and 2 and defendants 4 and 5 were the sons of those trustees. Defendant 2 is said to have purchased the suit item from defendant 1 under a sale deed dated 12-9-43 and later on sold it to defendant 3 by a sale deed dated 30-3-46.

(2.) The plaintiffs having applied for and obtained the permission of the Deputy Commissioner, Bangalore District, to bring a suit under Section 92 Civil P. C., brought their suit and prayed for the removal of defendant 1 from her trusteeship, for settling a scheme in accordance with the directions contained in the will of Hanumanthappa and appointing new trustees and vesting the property in them, for accounting by defendants 1 to 3 and for recovery of possession of the property from the said defendants. The suit was contested by defendant 3. Defendant 2 merely filed a statement and later on absented himself. Defendant 3 denied the genuineness and validity of the will. He pleaded that defendant 1 was entitled to sell the property as no trust had been created by the will nor had it been acted upon. He also pleaded that he had spent some monies for improving the property and that he was a bona a fide purchaser for value.

(3.) The learned District Judge held that the will was genuine and that it created a trust, and he directed the framing of a scheme and the vesting of the property in the new trustees to be appointed as the terms of trust were not being carried out. He was, however, of the opinion that he could not direct in this suit defendants 2 and 3 to deliver possession of the property to the plaintiffs or to any trustees that might be appointed or to render any account of the income of the suit property as the suit was one brought under Section 93 Civil P. C. He, therefore, dismissed the suit as regards the last two matters. Defendant 3 has now come up in appeal.