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TMI Blog1983 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case, and on the interpretation of the trust deed, the value of the corpus of the Sahebzadi Anwar Begum Trust is liable to be included in the principal value of the estate of late Sri Osman Ali Khan Bahadur ? " R. C. No. 87 of 1978 arises out of the reference made at the instance of the Trustees of Sahebzadi Oolia Kulsum Trust and the question referred to for the decision of this court is as follows: " Whether, on the facts and in the circumstances of the case, the trust created by the deceased on March 21, 1953, known as Sahebzadi Oolia Kulsum Trust is ab initio void? " R. C. No. 88 of 1978 arises out of the reference made at the instance of the Department and the question referred to for the decision of this court is as follows : " Whether, on the facts and in the circumstances of the case, and on the interpretation of the trust deed, the value of the corpus of the Sahebzadi Oolia Kulsum Trust is liable to be included in the principal value of the estate of late Sri Osman Ali Khan Bahadur ? " All the four references can be disposed of by a common judgment as questions of law referred to are identical. We would like to state briefly the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal value of the estate. He directed the trustees to pay the duty attributable to this part of the property included in the principal value on a proportionate basis with reference to the total duty payable and the principal value of the estate determined. As against that order, an appeal was preferred by the trustees before the Appellate Controller. The Appellate Controller held that as the Wakf-alal-aulad was created, it was saved by the provisions of the Wakf Validation Act, 1913, and ss. 13 and 14 of the Transfer of Property Act are, therefore not violated. Then the Revenue preferred appeal to the Appellate, Tribunal. The Appellate Tribunal confirmed the order of the Appellate Controller on the ground that though the trust was initially void, it was acted upon for more than 12 years and hence it became valid by virtue of the title perfected by adverse possession against the settlor and the heirs claiming under him and the settlor provided in the deed for the maintenance and support of the members of his family and his descendants and ultimately for religious and charitable purposes and that the trust deed does not offend the rule against perpetuity and ss. 13 and 14 of the Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date the several trusts created by the Nizam, the Nizam Trusts Validation Act, 1950, was enacted by Parliament, unfortunately these two trust deeds do not find a place in the schedule appended to the Nizam Trusts Validation Act, 1950. He, therefore, contends that they are hit by ss. 13 and 14 of the Transfer of Property Act. Sri Y. V. Anjaneyulu contends that inasmuch as Muslim personal law permits the Wakf-alal-aulad postponing the benefit being conferred upon charity till the extinction of all his family members and his descendants and s. 2 of the Transfer of Property Act clearly provides that the provisions of the Transfer of Property Act will not apply to the trust created in perpetuity by Muslims under their personal law, the two trusts created by late Nizam are valid under the law and they are not hit by ss. 13 and 14 of the Transfer of Property Act. Section 13 provides that where on a transfer of property, an interest therein is created for the benefit of a person not in existence on the date of the transfer subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect unless it extends to the whole of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad no legal effect at all, as Act VI of 1913 was enacted to nullify the effect of the above cited decision of the Privy Council. It is true that the Privy Council held in Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdary [1894] 22 IA 76; [1895] 22 Cal 619 (PC), that under the Mohammedan Law, a perpetual family settlement expressly made as Wakf is not legal, merely because there is an ultimate but illusory gift to the poor. But by virtue of enactment of the Mussalman Wakf Validating Act (Act VI of 1913), the effect of the above-cited decision of the Privy Council was nullified as the Act made all the perpetual family settlements, even if illusory in nature, valid. But this enactment has no application to the Hyderabad State. The question whether the Act VI of 1913 is applicable to the Hyderabad State or not was examined by a Division Bench in Salah v. Husain, AIR 1955 Hyd 229. The Division Bench held that " neither the Mussalman Wakf Validating Act of 1913, nor the Mussalman wakf Validating Act of 1930, has been applied to the Hyderabad State by virtue of the Part B States Laws Act and the result is that no validity could be given to the wakf in question by reason of the statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontends that the right to recovery of possession of the trust properties by the settlor was not lost under article 113 of the Limitation Act (article 120 of the old Act). According to him, the settlor or the persons claiming under him has not taken any steps either to recover possession of the trust properties from the trustees or beneficiaries nor has he or the persons claiming under him made a demand for the same in assertion of his or their rights in the property nor is there any denial by the trustees against such demand and hence the right to sue has not to accrue. He placed reliance upon the decisions Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270, Manikayala Rao v. Narasimhaswami, AIR 1966 SC 470 and Venkata Subrahmanyam v. Brahmayya Sastry [1964] II An WR 130. Section 27 of the Limitation Act reads as follows " 27. Extinguishment of right to property :-At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. The principle underlying this section is of general application. This section is an exception to the well accepted rule that limitation bars only the remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised. Right to sue ordinarily means the right to seek relief by means of legal procedure. It implies that the person suing has substantive and exclusive right to claim asserted by him and that there is an invasion of it or a threat of invasion. When the right to sue accrues depends to a large extent on the facts and circumstances of a particular case keeping in view the relief sought. It accrues only when a cause of action arises and for a cause of action to arise, it must be clear that there must be an assertion and a denial. In Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270, one Kanhaya Lal executed a last will on May 27, 1896, and died in the year 1899, leaving behind his sole widow, Smt. Koklan, his infant son, Tarachand, and his great nephew, Mohan Lal. The properties left by Kanhaya Lal consisted of movables and immovables and they were all self-acquired but not ancestral. Tarachand died in the year 1918, leaving behind his sole widow, Mt. Bolo, and his infant son, Meher Chand. According to the terms of the will, if Tarachand, minor, dies before his mother, then the latter shall be held and considered to be the owner of the said minor's half share in the entire property. As di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not entitled to the possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession would date from the period when a specific allotment was made in his favour. It would, therefore, appear that the alienee is not entitled to the possession till a partition has been made. That being so, it is arguable that the coparceners can never be in adverse possession of the properties as against him as possession can be adverse against a person only when he is entitled to the possession. In Venkata Subrahmanyam v. Brahmayya Sastry [1964] II An WR 130, Gopal Rao Ekbote J., as he then was, had to examine the scope and effect of the expression " when the right to sue accrues " in art. 120 of the Limitation Act. In a suit on the foot of a promissory note, three points were raised. (1) That the suit promissory notes were not true and, in any case, not supported by consideration. (2) That the decree in O.S. No. 205 of 1949 on the file of the District Munsif's Court was collusive and fraudulently obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an action against him by the owner would be barred by limitation. In Hem Chand v. Pearey Lal, AIR 1942 PC 64, their Lordships held that where trustee has been in possession for upwards of 12 years of property under a trust which is void under the law, an action against him by the rightful owner would be barred by limitation under the statute, the reason being that the possession of the trustee is as much adverse to the true owner as that of any trespasser. This ruling was followed by the Rajasthan High, Court in Shyam Charan v. Kanhaiyalal, AIR 1967 Raj 176. These rulings deal with immovable properties. These rulings should be appreciated in the light of the expression " right to sue accrues ". We have already dealt with the implication of this expression. The right to sue accrues when it is definitely asserted by the plaintiff and denied by the defendant. In the absence of such assertion by the rightful owner and denial by the person in possession, the right to sue does not accrue. Admittedly, the settlor or the persons claiming under him in the case on hand did not take any steps to recover the trust properties from the trustees. Hence, the contention of Sri Anjaneyulu that inasm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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