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TMI Blog2015 (8) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... e properties were auctioned and one such evacuee property auctioned was 61 bigha and 6 biswa land comprised in Khasra No. 206, 207, 208, 209, 210 and 211 in the revenue estate of Basai Darapur Delhi. That the Jhang Biradari Association took a decision to bid for the said evacuee property put up for auction but was handicapped on account of it being then not registered as a society under the Societies Registration Act and additionally because as an association it could not participate in the bidding process, thus it was resolved that Late Sh.Amir Chand and Brij Lal shall make a bid for the land, which would actually be on behalf of the society. Accordingly the said two persons made a bid in sum of Rs. 3,00,050/- which was accepted and as a result the said sum of Rs. 3,00,050/- had to be either paid to the account of the Central Government or could be adjusted by making adjustments of persons whose entitlement for being allotted evacuee property, with amount i.e. money quantified was accepted by the Government. It was pleaded that by adjusting claims of associates for evacuee property left by them in Pakistan the bid amount was satisfied and the sale certificate was issued in the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring 31 bighas was notified for acquisition under Section 4 & 6 of Land Acquisition Act. It further accrued on 15.4.2004 when Award dt. 7.1.81 was set aside by Hon'ble High Court of Delhi vide W.P.(C) No. 697/1983. The cause of action also accrued on 21st October, 2006 when Sh.Matwal Chand expired. It further accrued when mutation of the property in question was got fraudulently effected in the name of the legal heirs of Sh.Matwal Chand in February, 2009. It also accrued recently when plaintiff came to know that defendants were contemplating to sell a portion of the property in question representing themselves to be the sole and absolute owner of the said property. The cause of action is still continuing as the defendants are actively instrumental in achieving their illegal designs of selling, transferring and disposing off the suit property/part thereof by illegally representing them to be the sole owners. The cause of action is still continuing." 4. Along with the plaint the appellant filed 56 documents, most of which emanate from government authorities and succinctly put would show that on February 15, 1958 when the bid made by Amir Chand and Brij Lal was accepted the Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was pleaded that the suit was barred by limitation and for which pleadings in paragraph 21 of the plaint were highlighted. Relevant would it be to highlight that the maintainability of the suit which sought only a decree for declaration was challenged on the plea that cancellation of the sale-deed dated May 16, 1962 executed by Amir Chand and Brij Lal in favour of Matwal Chand was not sought. It was not the case pleaded that because the plaintiff was not in possession of the suit land the suit for declaration simplicitor would not lie. 6. The respondents filed an application under Order VII Rule 11 of the Code of Civil Procedure praying for rejection of the plaint with respect to the two legal objections raised in the written statement. The respondents also filed IA No. 13043/2011 praying for rejection of the plaint on said two legal preliminary objections raised in the written statement. Under the belief that the maintainability of the suit which sought a decree for mere declaration was being questioned on account of possession of the suit land not being claimed, IA No. 16791/2011 was filed by the appellant seeking to amend the plaint by pleading that the society was in legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son which is legally sound is pleaded in the application seeking amendment, as was held by the Supreme Court in the decision reported as AIR 1983 SC 462 Panchdeo Narain Srivastava Vs. Kumari Jyoti Sahay & Anr. 12. A perusal of the original plaint would evince that there is no admission made by the appellant that it is not in possession of the suit land. The plaint has been very inartistically drafted and unfortunately the lawyer has not even used the word that originally Amir Chand and Brij Lal and thereafter Matwal Chand held the properties on behalf of the plaintiff as trustees, pending formal constitution of the plaintiff as a body incorporate. The entire pleadings in the plaint, meaningfully read, pleads so. But yet the counsel did not formally incorporate said aspect in the pleadings. It is trite that it is the substance of the pleadings which matters and not the form. Meaningfully read, the suit is based upon the plea that the suit property was purchased by Amir Chand and Brij Lal for the benefit of the members of Jhang Biradari Association and the beneficiaries would be such persons who become members of the plaintiff and were migrants to India from Jhang upon partition. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Single Judge has not considered amendments proposed as per paragraph 9A, 9B, 10A, 10B, 10C, one line to be added to the existing paragraph 12, paras 13A, 13B and 18A, on a perusal thereof it becomes apparent that the amendments are clarificatory by expanding upon the existing pleadings and since issues have yet to be settled on the pleadings of the parties and trial has yet to begin, it is a fit case where the proposed amendments ought to have been allowed. 15. Concerning the reasoning of the learned Single Judge that the suit was barred by limitation and that without seeking cancellation of the sale-deed dated May 16, 1962 a suit for declaration simplicitor would not lie, we need to note that the learned Single Judge has heavily relied upon pleadings in paragraph 21 of the plaint wherein it has been pleaded that the cause of action accrued when Amir Chand and Brij Lal sold the suit property to Matwal Chand. It also accrued when general power of attorney was executed authorizing Matwal Chand to perform functions for the society. It accrued on different dates when Matwal Chand corresponded with various authorities. 16. For the second time in our judgment we must express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bansi Dhar & Ors. The undernoted extracts would bring out that its provisions guide all kinds of trusts, be it private or be it a public trust:- "18........ While in India we shall not be hidebound by English decisions on this point, luckily both sides agree here - and that accords with the sense of the law - that a hospital for women is a charitable object, being for medical relief. Moreover, the beneficiaries are a section of the public, women - that still silent, suffering half of Indian humanity. Therefore, this element connotes a public trust. The next question is whether the Indian Trust Act, 1882, applies to the present case. The Courts below have argued themselves into an application of Section 83 of the Trust Act. Sri Dixit rightly objects to this course because that Act relates only to private trusts, public charitable trusts having been expressly excluded from its ambit. But while these provisions proprio vigore do not apply, certainly there is a common area of legal principles which covers all trusts, private and public and merely because they find a place in the Trusts Act, they cannot become 'untouchable' where public trusts are involved. Care must certainl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used herein and defined in the Indian Contract Act, 1872, shall be deemed to have the meanings respectively attributed to them by that Act." 21. A plain perusal of it would clearly indicate and exemplify that a Trust is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. 22. Once a Trust always a Trust, is the trite proposition of law, like one another proposition, 'once a mortgage always a mortgage'. The Trust property cannot be allowed to be dissipated in any manner. 23. It is a common principle that whenever a Trustee dies his legal representatives, not necessarily only the legal heirs of the deceased trustee, could rightly manage the property till a proper trustee is appointed. Even a trustee de son tort could safeguard the trust property. Sections 73 and 75 of the Indian Trusts Act, 1882 could fruitfully be referred to. They read as under:- "Section 73: Appointment of new trustees on death, etc. - Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative of a deceased trustee for the purpose of protecting the Trust property could act as a trustee. 25. The biological children of a trustee can never inherit the property over which their father was the trustee. Furthermore, if the biological children of a trustee enter into possession of the Trust property under their father or on their fathers' death, once again they being the legal representative of the trustee, as per law are enjoined to protect the trust property and such persons cannot also plead adverse possession since Section 10 of the Limitation Act, 1963 stipulates:- "10. Suits against trustees and their representatives - Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. Explanation - for the purposes of this section any property comprised in a Hindu, Muslim or Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout interference on the part of others." (emphasis supplied) It is quite apparent that the aforesaid concepts 'animus possidendi' and 'corpus possessionis', as extracted supra, would adequately explain the position. 30. There are two elements involved in the concept possession, namely, 'corpus possessionis' and 'animus possidendi'. The owner need not necessarily be in physical possession at all times. Besides, in the case of a Trust the physical possession by the trustee would actually be a case of custody of the property being with the trustee and legal possession being with the trust. 31. There was no need to seek any cancellation of the sale-deed dated May 16, 1962 because in the plaint the said sale-deed has not been challenged. Meaningfully read, the pleading is that Amir Chand and Brij Lal executed the sale-deed in question in favour of Matwal Chand because Matwal Chand was the Secretary of the Association and he held the property as a trustee. There are pleadings that when Matwal Chand corresponded with various statutory authorities for change of land used to permit a group housing thereon he acted on behalf of the plaintiff as the Secr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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