SENA YASIM SAHIB Vs. KADUR EKAMBARA AIYAR

JUDGEMENT

(1.) The point of law argued in this second appeal is whether the trustee of a temple who himself mortgaged land which was afterwards sold in court auction at the instance of the mortgagee, can sue on behalf of the temple to recover the landlord s interest, which was dedicated to the temple by the trustee s father, or whether, he is estopped from setting up a claim against a bona fide purchaser for value that it is trust property. The District Munsif found that he was estopped and dismissed the suit. The Subordinate Judge in appeal reversed the District Muusif s decree and gave the plaintiff a decree for possession of the melvaram interest.

(2.) Estoppel in pais creates a personal disability attaching to an individual and his representative of denying the truth of a thing which he has led others by his acts or representations to believe to be true.

(3.) If a trustee alienates trust property for his own purposes he acts not as trustee but in breach or repudiation of his trust. Therefore, as Telang, J., in Sri Ganesh Dharmidahr Mahraj Dev v. Keshavrav Govind Kulgavakar (1890) I.L.R. 15 Bom. 625 points out, the estoppel arising out of the conduct of the mortgagor in representing the trust property to be his own property works, not against succeeding trustees, but against the heirs of the alienor in his personal capacity. In Syed Gulam Nabi Sahib v. Nagammal (1896) 6 M.L.J 270 it was recognised that the right of suing for the recovery of possession of trust property wrongfully alienated was not confined to succeeding trustees but might be exercised by the same trustee who made the alienation in order to set right the wrong done to the trust.