PAZHANIANDY TARAKAN Vs. MURUKAPPA TARAKAN

JUDGEMENT

(1.) In this case the plaintiff and his family obtained a saswatam lease of certain property which was dedicated in trust. The plaintiff was appointed the managing trustee and in pursuance of that appointment he gave notice to the person in possession of the property to deliver it up. The title of plaintiff's transferor was disputed and subsequently plaintiff purchased the saswatam right from the rival jenmi in his own name. He now sues for damages for trespass and an injunction. The Lower Appellate Court dismissed his suit on the ground that under Section 88 of the Trusts Act plaintiff was bound to hold the property on behalf of the trust and could not therefore bring a suit in his personal capacity in derogation of the trust.

(2.) The first argument put forward in appeal is that inasmuch as the plaintiff did not obtain actual physical possession of the property, Section 88 does not apply. In Section 88 there is no recital as to the possession of the property and in the cases relied on by the appellant in Munisami V/s. Maruthammal (1910) I.L.R. 34M. 211 : M.L.R. 687 and Srini-vasamurthi V/s. Venkata Varada Aiyangar (1911) I.L.R. 34M. 257 : 21 M.L.J. 669 (P C) there is really nothing to support this contention. In fact in Munis ami V/s. Maruthammal (1910) I.L.R. 34M. 211 : M.L.R. 687 it was held that, " If an executor accepts the office and acts as executor with full knowledge of all the circumstances bearing on his right. he is estopped from subsequently repudiating the will." Here the plaintiff accepted the trust and acted upon it and consequently he is now estopped from disputing the trust.

(3.) The next point put forward is that the plaintiff is entitled to be reimbursed out of the trust the money which he paid out of his own pocket and that therefore until that is done the property is his own. This is no doubt true and would be applicable in a case where the beneficiaries sought to take the possession out of the plaintiff's hands, but in the present case this is not. even a suit against the beneficiaries but a suit against a co-trustee, and when Section 88 lays down that the plaintiff must hold this property for the benefit of the trust I do not think that any Court would allow him to sue in his own capacity as being solely entitled to the property. If he does sue in such capacity he is, in effect, committing a breach of trust. Plaintiff is admittedly in possession of the trust property and can out of it recoup himself what he has spent for the benefit of the trust. Consequently I think that the Lower Appellate Court is quite right in dismissing his suit. The Second Appeal is dismissed with costs.