HIMANSU KUMAR ROY CHOWDHURY Vs. MOULVI HASEM ALI KHAN

JUDGEMENT

(1.) This appeal arises out of a suit for possession. The Barisal Loan Company obtained a decree for Rs. 4653 odd against the father of defendant 5 on 9 June 1929. They put this decree into execution on 28 December 1929. Defendants 1 to 4 purchased this decree during the pendency of this execution case and were substituted in place of the Company on 20 February 1930. Thereafter the execution case was struck off on 9 July 1930. On 28th November 1930, the decree was put into execution again by the assignees. On 10 December 1930, the judgment-debtor executed a trust deed (Ex. 12) by which he appointed the plain-tiff a trustee for the payment of his debts. The material portion of this document is as follows: I execute this trust deed to the following effect: for want of good management my estate is not being properly managed and protected; therefore being involved in debt and being unable to satisfy the same, on 17 Sraban 1322 last I appointed Babu Ganesh Chandra Das Gupta, Babu Jadab Chandra Roy and Babu Indu Bhusan Sen Gupta, pleaders, as trustees of my estate and gave them entire charge. But owing to want of time they being unable to do anything resigned the office of trustees by giving a notice to me on 30 Chaitra 1334 Rule 8. So I took charge of my estate again and commencing to carry on the work I have not been able to pay any part of my previous debts; on the other hand I had to increase the amount of the debt by incurring new loans. Under these circumstances, I having requested you with the view that I might make over to you the charge of my estate, appointing you trustee of my entire estate for paying off my said debts and you having acceded to my request have agreed to become the trustee; therefore by this trust deed I make over my entire estate to your hands; you being my representative as trustee on the strength of this trust deed will manage the 16 annas estate and pay off the debts. A description of the list of the properties of my estate is given below. If through mistake any property has been left out or if any property be acquired with the income of the same or of the estate in future, all of them shall vest in you and from this day you will manage all the said properties exercising all my power of ownership. " As trustee on the strength of this trust deed you will realize rent, etc. from all tenants amicably or by suit, realize current arrear and future rent, cess, interest and damages due amicably or by suit. In the suits pending in Courts you will get yourself substituted in my place as trustee and continue the suits and execution cases; you will at your will appoint and dismiss the officers, servants and pleaders who are serving under the estate now or appoint new officers according to need; and you will, as trustee, manage and possess the said properties, etc.... You will try to release the estate from debt due to the creditors or superior landlords or other creditors of the estate in any way you think proper, whenever it will be necessary to save limitation by paying interest out of the dues of the said creditors, you will be competent to do so with authority equal to mine.... If in order to pay wholly or in part the said amounts of debt, or for the benefit of the estate or for any other purpose it be necessary to raise loan by mortgaging the properties described in schedule below then you will be competent to do so.... God forbid, if you deem it impossible to pay off the debts with the income of the estate, then in order to pay off the said debts wholly or in part on informing me you, as trustee, with the power equal to mine, shall be competent to and will sell or let out by lease, etc. to others such properties out of the properties described in schedule below as you may deem necessary to do so, by such sale and lease and letting, etc. I and my heirs or representatives shall for ever be bound. I or my heirs shall not be competent and shall have no right to remove you from the office of trustee until the entire debt of the estate is satisfied; but, if you misappropriate any money of the estate, or if any loss be caused to the estate by any fault in your acts, then I shall be competent to remove you on giving two months notice and you shall be wholly liable for the loss. During the subsistence of this trust deed in force I or my heirs shall not exercise and shall not be competent to exercise my right of ownership in the properties described in the schedule below; nor shall I or my heirs interfere or shall be competent to interfere with the management or realization of the estate in any way, nor shall I or my heirs have any right to do so. For the maintenance, etc. expenses of my family you will pay from the estate such amount as you will decide. After the creation of the trust deed I or my heirs shall not be competent to take any money or papers from any tenant or officer. You will be competent to retire from the office of the trustee at any time on giving me one month's previous notice.

(2.) Certain properties belonging to the judgment, debtor were attached on 8 September 1931, in the execution case mentioned above and the case was dismissed on that date. On 7th December 1932 the decree was again executed. In the petition for execution (Ex. 2) the plaintiff was added as a judgment-debtor.

(3.) The properties which are the subject-matter of the present litigation and which were declared by Ex. 12 to be trust properties were thereafter attached in execution of this decree and were purchased by defendants 1 to 4 on 1 May 1934. They obtained delivery of possession through Court on 22 August, 1934. On 25 September 1935 the plaintiff instituted the present suit for a declaration that his title was not in any way affected by the sale at which defendants 1 to 4 purchased. He also prayed for possession. The Subordinate Judge decreed the suit. Hence this appeal by defendant 2.