ARDESHIR SHAPURJI NARIELWALA Vs. MANCHERSHAW SHAPURJI NARIELWALA

JUDGEMENT

(1.) The learned Judge, from whose decree this appeal has been preferred, has found, on his view of the facts and law, that there was neither a gift to nor a trust in favour of Virbai by her husband Shapurji Sorabji Narielwala in respect of the amount of Ks. 75,000, which is now in dispute. Accordingly, the learned Judge has allowed the claim made in the plaint, holding the appellants, who were administrators of the estate of the said Narielwala, guilt) of a breach of trust by reason of their having paid the amount to Virbai instead of distributing it among the residuary heirs to the estate.

(2.) In supporting the appeal the learned Advocate-General has conceded that there was no gift. He has challenged the decree of Beaman J. on two grounds. First, that there was a trust in favour of Virbai; and, secondly, that even if there was no trust, the learned Judge's finding on the evidence that the amount was paid by the appellants to Virbai with the consent of the first respondent (plaintiff) estops the latter from disputing the validity of the payment as a breach of trust on their part. 2. In the view which I take of the case it is unnecessary to decide whether there was a trust created or not by her husband in favour of Virbai. Beaman J. has found upon the evidence that the appellants, acting as legal administrators of the estate of the husband, paid the amount now in dispute to Virbai, with the consent of all the family, including the first respondent (plaintiff) "in the sincere and very natural belief that they were carrying out Shapurji's wishes." " I am also sure," the learned Judge says, " that they" (i.e., the appellants) "acted quite openly and straightforwardly, and that all the family, including the plaintiff, knew what they were doing and cheerfully assented." That is, the plaintiff, who now complains that the payment was a breach of trust on the part of the appellants, consented cheerfully to the payment being made after he had full knowledge of what he was assenting to.

(3.) This finding of fact has not been contested before us by the learned counsel for the first respondent (plaintiff), in supporting the decree of the Court below. The evidence on the record fully supports the finding. Without attempting to impugn it, the learned counsel has argued that in law the first respondent's consent is not sufficient to deprive him of the right to call upon the appellants to make good the amount which they paid wrongly and in breach of trust to Virbai. In support of this argument it is contended that a person who takes out letters of administration of the estate of an intestate is a trustee for the beneficiaries of that estate within the meaning of the Indian Trusts Act, under Section 2.5 of which no trustee can escape liability for a breach of trust on the ground of concurrence in it by the beneficiary unless such concurrence was " with full knowledge of the facts of the case and of his," i.e., the beneficiary s, " rights as against the trustee." In the present case, it is urged, all we have is concurrence by the first respondent with full knowledge of the facts; but there is no evidence, no express finding of the lower Court, no plea even of the appellants that he had knowledge that legally there was no trust and that he was one of the beneficiaries in respect of the amount.