SUGRABAI Vs. MAHOMEDALLI AHMEDALLI

JUDGEMENT

(1.) The plaintiffs have filed this suit claiming to be beneficiaries under a trust- deed dated 2 December, 1915. Defendant 1 is the father of plaintiffs 1 and 3 while defendant 2 is the father of plaintiff 2. Plaintiff 2 is the husband of plaintiff 1. The trust-deed (Ex. B) appears to have been made shortly after the marriage of plaintiff 1 with plaintiff 2 and was intended to be for the benefit of the children of defendant 1 and his son-in-law. In the plaint it is alleged that after the trust-deed was executed and accepted by defendants 1 and 2, as shown by the endorsement at the foot of the trust-deed, defendant 1 constituted himself the managing trustee, collected the rents and profits of the property and utilised the same in accordance with the terms and provisions of the trust-deed. The plaintiffs say that only for about two years prior to the filing of the suit no payments were made to them in accordance with the provisions contained in the trust-deed and they had therefore to file the suit. Defendant 2 is stated not to have taken any active part in the administration of the trust, but allowed defendant 1 to manage the same in such, manner as he liked. The first prayer in the plaint is that defendants 1 and 2 should be removed from the trusteeship. The whole plaint is verified as true on information only.

(2.) After the written statement of defendant 1, in which he contested the validity of the trust-deed, was filed, it appears that an attempt was made to take a consent decree as between the plaintiffs and defendants 1 and 2 under which the trust-deed was being confirmed. Defendant 3, who claimed to be an, equitable mortgagee of the property from defendant 1, thereupon, applied to be made a party to the suit. He has filed a written statement adopting the contention contained in the written statement of defendant 1.

(3.) The validity of the trust is contested on the ground that the gift by way of trust was not complete as the settlor had not transferred the possession of the property as required by the Mahomedan law. If is next urged that the settlor has revoked the settlement by a declaration dated 18 January 1926. It is further contended that although the trust-deed was executed there was no bona fide intention on the part of defendant 1 to settle the property and in fact defendant 1 always dealt with the property as his own. The onus of proving that defendant 1 continued to deal with the property ashes own, and therefore the trust-deed was not valid and binding, would be on those who allege it.