KAYASTHA PATHSHALA, ALLAHABAD Vs. MT BHAGWATI DEVI

JUDGEMENT

(1.) The question in the present case is whether a deed of trust executed by one Mahadeo Prasad as settlor on 9 April 1914, is or is not wholly invalid for the reasons alleged in para. 5 of the plaint as follows : 5. That the alleged deed of trust is wholly null and void, and did not in fact or in law create any valid trust and is not binding on the natural heirs of the said Chaudhri Mahadeo Prasad for the following, among other, reasons : (a) The said deed was a mere paper transaction. It was never enforced nor acted upon during the life-time of the said Chaudhri Mahadeo Prasad who continued to be the owner of the properties and to enjoy the profits thereof as owner as heretofore. (b) The alleged trust was not really created for any lawful purpose. The real purpose for creating the alleged trust was to prevent the devolution of the property on the death of the said Chaudhri Mahadeo Prasad according to law. The real purpose was to preserve and keep the property intact and undivided and to increase it in bulk and value ad infinitum and to accumulate a part of its profits indefinitely ; to regulate the succession thereto by the descendants of Chaudhri Mahadeo Prasad and his other relations and their children, generation after generation, in the male line, under an ostensible scheme of regulating their enjoyment of a substantial part of the income and profits of the property through the intervention of an illegal trust in a manner totally unknown and repugnant to Hindu law. All the said purposes are wholly unlawful. (c) The alleged trust in so far as it purported ostensibly to be a trust for charitable purposes was void inasmuch as it was not irrevocable. (d) The various provisions for ostensible charitable purposes were a mere device to lend a colour of reality and validity to the document. The said charitable dispositions were illusory and dependent upon remote contingencies and were not likely to come into operation at all. In any case the lawful purpose (if any) was inextricably mixed with the dominant and unlawful purpose and inasmuch as the lawful and the unlawful purposes cannot be separated from each other the whole trust is void. (c) The alleged trust is further void for remoteness and vagueness and is opposed to public policy and is contrary to fundamental principles of Hindu law.

(2.) The suit was brought on 25 May 1928, by the settlor's daughter and her two sons in their respective characters of heiress and presumptive reversioners to estate of the settlor under the Hindu law. They impleaded the present appellants, the Kayastha Pathshala, Allahabad, and a number of persons who appear upon the terms of the deed to be entitled to beneficial interests of one kind or another. The settlor was by caste a Kayastha and the Kayastha Pathshala, Allahabad, is a society registered under the Societies Registration Act (21 of 1860) with objects which include the management of a school of that name, the maintenance of a library and assistance to students of the Kayastha community. Upon the settlor's death (5th December 1924), this society, in accordance with the terms of the deed, succeeded him as trustee and in due course and without objection obtained mutation to the immoveable properties comprised in the deed. It is plain enough that until shortly before the present suit the society's possession of the trust property as trustee and its assumption and discharge of the duties of trustee was with the consent of the settlor's daughter, her husband and major son. The relief claimed by the plaint is (1) a declaration that the deed of trust is wholly void, (2) that the settlor's daughter (plaintiff 1) be awarded possession of the properties comprised therein, (3) mesne profits and (4) costs. The case made is not that the plaintiffs desire the administration of the trust property in accordance with the deed, or that the trusts of the deed having been fully carried into execution as regards some or all of the properties, the plaintiffs are entitled to benefit under a resulting trust, or are otherwise entitled to have possession of such properties. The plaintiffs' case is that the deed of trust was altogether void ab initio and that the possession of the Kayastha Pathshala has been wrongful throughout. The learned trial Judge (Additional Subordinate Judge of Benares) on 15 October 1929, dismissed the suit with costs, but a Division Bench of the High Court at Allahabad on 27 July 1931, set aside his decree and gave to the first plaintiff (Mahadeo Prasad's daughter, Mt. Bhagwati Debi) a decree in ejectment with a direction that the Kayastha Pathshala should account for the profits of the property in a manner and upon principles which need not here be detailed.

(3.) Mahadeo Prasad, an orthodox Hindu, had no male issue. His properties were extensive. On 17th November 1898, he made a will whereby, in the event of his leaving no male issue, he vested in the Kayastha Pathshala the whole of his property (with certain exceptions) subject to a series of trusts bearing considerable resemblance to trusts afterwards declared by the trust deed now before the Board. His only daughter having been married in 1900, he executed a codicil to his will on 4 November 1903, making provision for certain relations but not otherwise fundamentally altering the scheme of the will. The deed of trust executed by him on 9 April 1914 began by referring to his Hindu beliefs, his desire to maintain the temples built by himself and his ancestors, his desire for improved education among Kayasthas, his intention to provide for his heirs, relations and old family servants, and his wish that two houses belonging to him-one in Allahabad and one in Nanpur -should be preserved: For all these objects I made directions under a will and a codicil. But as I have been suffering from albuminuria for the last 14 years, and my right eye has become defective since 1909, it is now my intention that I should after making arrangements for myself also, create a trust about all these matters during my lifetime, so that I might be somewhat relieved during my lifetime, be able to spend most of my time in the worship of God and be also satisfied that proper arrangements about all the matters would be made. Therefore, I, while in a sound state of body and mind and in the enjoyment of all my senses, proclaim and declare a trust in respect of my entire immoveable property worth about 17 lacs of rupees, mentioned in list (a) at the foot of this document, with the exception of house No. 764, situated in mohalla Yahaiapur, known as Kothi Satti Chaura, and mauza Kayam Khadau, Tauzi No. 6926 included in No. 4 pargana 63, District Darbhanga, and give in writing that the entire immoveable property, aforesaid, which is at this time in my possession, shall be considered to be included in the trust for the undermentioned objects, on the conditions specified below, which trust shall inure for ever.