Civil Appeals Nos 62 and 77 of 1959
Appeals from the judgment and decree dated March 25 1953 of the Madras High Court in A section Nos 731 and 720 of 1950
M C Setalvad Attorney general for India and MSK Sastri for the appellants Nos 2 to 8 and also for legal Representatives of appellant No 1 in C A No 62 of 1959
A V Viswanatha Sastri M K Ramamurthi and section T Venkataraman for respondents Nos 2 and 10 in C A No 62 of 69 and respondents Nos 2 and 16 In C A No 7759
209 R Ganapathy Iyer and G Gopalakrishnan for appellant No 2 and also for legal Representative of appellant No 1 in C A No 77 of 1961 C R Pattabhi Raman and G Gopalakrishnan for appellant No 3 in C A No 7759
October 26
The Judgment of the Court was delivered by GAJENDRAGADKAR J
These two appeals have been brought to this Court by two sets of defendants with a certificate of the Madras High Court and they arise out of a suit instituted under o 1 r 8 on behalf of the general body of creditors for administration against the trustees and alienees of the properties which belonged to their debtors
Defendant 14 and his sons defendants 18 to 24 are the appellants in Civil Appeal No 62 of 1959 while defendants 12 13 and 16 are the appellants in Civil Appeal No 77 of 1959
Defendants 1 to 6 are the debtors
They were members of an undivided Hindu family known as Kalakkad Pannayar family in Tirunelveli District
The family was doing Commission agency business in petrol kerosene and crude oil
It had secured agency rights from the Burmah Shell Company
The members of the family became heavily indebted by about June 1936 and as a result there was a pressure from their creditors
In order to meet the said pressure a deed of composition was executed EX B 2 on July 8 1936
As a result of this composition 56 out of the creditors of the family agreed to a scheme for settlement of their debts
Under this deed defendant 7 was constituted as a trustee and as such was empowered to take over the assets of the debtors sell them to the best advantage and distribute the proceeds rateably amongst all credit
It appears that before the scheme under the competition could be successfully or effectively worked out one of the creditors Ayyah Ayyar filed an insolvency petition No 26 of 1936 in the Sub Court at Tirunelveli on July 30 1936
By this 210 petition the creditor wanted defendants 1 to 6 to be r adjudged insolvent
During the pendency of these a proceedings on August 26 1936 defendants 1 to ff executed a deed of trust ExB7 by this document they conveyed all their movable and immovable properties including J the outstanding due to them to three trustees
These were defendant 7 Subbarayalu Reddiar Veerabahu Pillai and Narayana Pillai
Tho trustees were authorised to dispose of the assets of defendants 1 to 6 and distribute the proceeds rateably amongst the creditors
Narayana Pillai died in February 1938
Veerabahu Pillai died some time before the present suit was instituted
Defendants 9 and 10 are the undivided sons of defendants 7 whereas defendant 11 is the widow and defendants 12 and 13 are the step brothers of Veerabahu Pillai
The trustees accerted the trust and entered upon their duties
They took possession of the immovable properties covered by the trust
They paid off the secured creditors and in regard to unsecured creditors they arranged to pay 50 of their dues by selling the immovable properties either to the creditors themselves or to third parties directing them to discharge the secured debts and the unsecured debts to the extent of 50 of their value
It is common ground that except their family house in which defendants 1 to 6 resided all other immovable properties belonging to them were conveyed under the trust deed
Defendant 14 was a secured creditor in whose favour a mortgage of the first schedule properties had been excelled for a sum of Rs 30000 on June 3 1935 exhibit B 95
This mortgage carried 10 compound interest
It appears that he had also lent a sum of Rs 3000 on a promissory note on July 17 1935 exhibit B 95a
This note carried interest at 12
The promissory note was supported by the pledge of the mortgage deed
In order to pay off the debts thus due to defendant 14 the trustees conveyed to him schedule I mortgaged properties for Rs 42000 on May 22 1937 EX
B 94 211 Out of the said consideration the amount due under the mortgage as well as the amount due under the promissory note were satisfied leaving a balance of Rs 3030 in the hands of the purchaser
He was directed to utilise this balance for repaying 50 of the dues of purchaser and 3 who have brought the present suit
The sale deed in favour of defendant 14 was executed by only two out of the three trustees defendant i and Veerabahu Pillai
Defendants 18 to 24 are the son of defendant 14
As we have already seen defendant 14 and his sons are the appellants in Civil Appeal No 62 of 1959
Defendant 7 who was one of the trustees was a creditor of the trustees to the extent of Rs 6000
His daughter in law was a creditor to the extent of Rs 2000 
In satisfaction of 50 of the debt due to these two persons the trustees conveyed schedule III properties to defendants 8 9 and 10 who are the undivided sons of defendant 7 exhibit B 8
This document executed on December 16 1936 for Rs 4000
The purchasers in their turn sold the properties to defendant 7 on May 30 1947
Defendant 12 is the step brother of the trustee Veerabahu Pillai and he purchased schedule V properties on November 7 1941 for Rs 2000 exhibit B 90
Defendant 13 who is the brother of defendant 12 purchased schedule II properties for Rs 15000 on August 29 1937 exhibit B 37
B 37
This document was executed only by two out of the three trustees
Another sale deed was passed in favour of defendant 13 in respect of schedule properties exhibit B 79 on February  1942 for Rs 2000
Defendant 16 who is the son in law of defendant 13 purchased two sets of properties schedule VII and schedule VII A on May 7 1943 and June 4 1943 Exs
B 104 and B 105 for Rs 8000 and Rs 600 respectively The properties thus conveyed to the respective purchasers were put into their possession
It is with the sale deeds executed in favour of defendant 14 and those executed in favour of 212 defendant 12 13 and 16 that we are concerned in a the present appeals
Defendants 12 13 and 16 are the appellants in Civil Appeal No 77 of 1959
In 1943 defendants 1 to 6 brought a suit o section 
No 30 of 1943 in the Sub Court at Tirunelveli for the administration of the trust created by them for account from the trustees and for recovery of the trust properties
To this suit they impleaded the surviving trustees and the alienees as defendants
In this suit a preliminary decree for account was passed by this Sub Court
Their claim however for the recovery of immovable properties was not Granted
This decree gave rise to three appeals before the Madras High court one by defendants 1 to 6 and the others by the trustees and the alienees respectively
These appeals were appeals A section No 473 510 and 544 of 1944
The three appeals were heard together and on December 20 1944 a common judgment was delivered
The High Court confirmed the ending of the trial court that the trustee were liable to render account for the management of the trust and it remanded the suit for a finding as to the market value of the lands covered by the respective sale deeds which had been challenged by defendants 1 to 6 The High Court thought that in determining the validity of the claim made by defendants 1 to 6 it was necessary to find out the proper value of the properties at the relevant time for that alone would enable the Court to decide whether the alienations had been effected by the trustees for grossly inadequate price as alleged by defendants 1 to 6
In the course of its judgment the High Court observed that it was not open to the authors of the trust to challenge the validity of the transaction which was permitted by them by the instrument of trust for it was clear that under the said trust deed the trustee were empowered to convey properties to the creditors in the discharge of their duties
After remand the Subordinate Judge took 213 evidence made his findings and submitted them to the High Court
It was at that stage that defendants 1 to 6 filed a petition for withdrawal of the litigation
This petition was allowed on December 12 1947 with the result that the suit filed by defendants 1 to 6 OS No 30 of 1943 was dismissed with costs throughout
Whilst the proceedings in the said three appeals were pending in the High Court and before defendants 1 to 6 were allowed to withdraw the litigation the present suit was filed on October 29 1947 by the three plaintiff who are the creditors of defendants 1 to 6 and who purported to act on behalf of the general body of creditors
Leave was granted to the plaintiff under o 1 r 8 and the suit has therefore been conducted as a representative suit
In the suit the plaintiffs ask for an account from defendant 7 and defendants 11 to 13 who are the legal representatives of Veerabahu Pillai on the allegation that the trustee have been guilty of wilful default
They also claim a declaration that the properties described in schedules I to VII A and VIII are still impressed with the trust and they ask for an order for the administration of the trust by removing defendant 7 and appointing an administrator to realise the amount due from the trustees on such account and to recover possession of the properties mentioned in the said schedule re call them and distribute the sale proceeds rateably amongst the unsecured creditors
Several defences were raised to this suit by the several defendants
It was denied that the trustees were negligent in the matter of collecting the outstandings and that the alienations effected by them were for inadequate considerations and otherwise improper and unjustified
It was urged that the present suit was barred by res judicata as a result of the withdrawal of 0
section No 30 of 1943
It was further alleged that the suit was not maintainable that it was bad for non joinder of 214 parties and was barred time
The respective by alienees pleaded that the transfers in their favour were valid and binding
Defendant 7 Defendant specifically urged that he was not guilty of any breach of trust J and a plea was also raised that the creditors who  had filed the present suit had acquiesced in some of the dealings 
Defendant 12 resisted the plaintiffs  case that he had intermeddled in the management of the trust estate and was therefore liable as a trustee de son tort
An objection was raised about the proper valuation of the suit and it was urged that the proper court fee had not been paid
It was denied that sale deeds executed by only two out of the three trustees were invalid
On these pleadings twenty nine issues were framed by the learned trial judge
In substance the trial judge rejected the plaintiffs  claim for account but he passed a decree declaring that the properties described ill schedules I to III V VII I to and VIII continued to be impressed with the trust imposed upon them by the trustees
The decree directed the removal of defendant 7 and the appointment of the advocates instead as administration
It further directed defendants is 1314 16 and 17 to deliver possession of the properties in their respective possession and asked the administrators to re sell the said properties and distribute the proceeds amongst the creditors and to pay the surplus if any to defendants 1 to 6
Under the decree defendants 12 13 14 and 16 were held entitled to receive the respective consideration of the sales and mortgages together with interest and they were also liable to render account for profits of the properties in their possession
This decree gave rise to three appeals before the High Court
Appeal A section No 720 of 1949 was filed by defendant 14 and his sons defendants 18 to 24
Appeal A
No 731 of 1949 was filed by defendants 12 13 and 16 and Appeal A section No 21 215 of 1950 by defendants 8 9 10 and 17
Ill substance the High Court has confirmed the decree passed by the trial court and dismissed all the three appeals
The High Court has however modified the trial courts decree in regard to the interest which the decree had ordered to be paid to the alienees
The High Court took the view that in adjusting equities between the alienees the alienations in whose favour were found to be invalid and the trust the contract rate of interest need not be awarded
Subject to the modifications made in regard to the payment of interest the rest of the decree has been confirmed
Defendants X 9 and 10 and the legal representative of defendant 17 who died pending the proceedings before the High Court have not challenged the decree passed by the High Court in their Appeal A section No 21 of 1950
Defendants 14 and 18 to 24 as well as defendants 1213 and 16 have however challenged the decision of the High Court and have obtained a Certificate from the said High Court in that behalf It would thus be seen that in the two appeals before this Court we are concerned with six transactional
B 94 which is executed in favour of defendant which is executed in defendant 12 Exs
B 37 and B 79 which are executed in favour of defendant 13 and Exs
B 104 and R 105 which are executed in favour of defendant 16
Broadly stated both the Courts below have found that all these alienations were effected for inadequate consideration
It has also been found that Exs
B 94 and B 37 are invalid for the reason that they have bee executed by only two out of the three trustees whereas the transfers under EXS
B 12 B 13 and be 16 held to be invalid as they are transfers in favour of the relations of one of the trustees Veerabahu
It has further been found that defendant 12 intermeddled with the estate of the trust and must therefore be regarded as trustee de son tort and therefore the transfer made to him is 216 invalid as a matter of law
Both the Courts have rejected the plea of res judicata and limitation raised by the defendants
There are some of the points of law which are common to both the appeals and it would be convenient to deal with them in a the order in which they have been raised before 
The First point argued before US by the learned Attorney General on behalf of the appellants in Civil Appeal No 62 of 1959 defendants 14 and 18 to 24 is one of limitation
He contends that on a fair and reasonable construction the present suit attracts the application of article 120 and is therefore barred
On the other hand Mr viswanatha Sastri for The plaintiffs contends that the plaint clearly showed that the plaintiffs are not asking merely for a declaration but they are also claiming that a new administrator should be appointed and a direction should be issued that the property in question should be delivered to him
Such a claim according to him obviously attracts article 131
It is common ground that if article 120 applies the suit is beyond time whereas if article 134 is applicable the suit is within time
The decision of this question would naturally depend upon the construction of the plaint
Is the claim made in the plaint one of declaration or is it a claim for possession of immovable properties The plaint sets out all the material facts which constitute the background to the present litigation marks material allegations in respect of all the alienation impeached in the plaint and by paragraph 35 it prays inter aha that schedules I to VII A and should be adjudged as still impressed as trust imposed on them by the deed of August 26 1936 and direct their re sale
That is clc of paragraph 35
By cld it is prayed that the Court should order the administration of the trust by removing defendant 7 if need be and appointing an administrator or officer of court 1 to realise the 217 amounts mentioned in cl
a b to recover possession
and re sell the properties referred to in paragraph c 3 to distribute the proceeds rateably amongst the unsecured creditors and perform such other acts and functions as may be necessary to 6 effectuate the trust in question
The learned Attorney General contends that cl
c asks for adjudication or declaration that the properties in question are impressed with the trust and that is no mere than a declaration and according to him cld prays for the appointment of an administrator to realise the amounts and to recover possession of the properties and re sell them
He suggests that on a fair construction of cl
d all that the plaintiff pray for is the removal of defendant 7 and the appointment of an administrator with power to realise the amounts specified and to recover possession of the properties indicated and to re sell them
This is not a claim that possession should be delivered to the administrator in the present suit
It may be conceded that if read by itself alone cld may be capable of the construction which the learned Attorney General seeks to put on it but in construing the plaint we must have regard to all the relevant allegations made in the plaint and must look at the substance of the matter and not its form
It is significant that the plaintiffs have valued the suit for the purpose of court fee and jurisdiction at Rs 23745 and this valuation includes several items ill respect of different properties valued under s 75 of the Court Fees Act
The valuation made in respect of the different items of properties under s75 is obviously and clearly valuation made on the footing that a claim for possession is made
In fact the Plaint specifically avers that the plaintiff valued the suit for possession covered by covered and D 2 under 
75 as indicated in the plaint
Thus there can be no doubt that the plaint has been valued on the basic that a claim for possession of the properties covered by the schedules Is intended to be made
Besides 218 it is also significant that in regard to the claim made be the plaintiff in respect of the transfer in favour of defendant 14 his sons defendant 18 to 24 have been joined specifically on the ground that since the plaintiffs claim possession of the said property the said defendants are necessary parties as it is found that they are in possession of the said properties
In other words the joinder of defendants 18 to 24 to the present suit is based solely on the ground that a claim for possession is made in the plaint and defendants 18 to 24 being in possession are necessary parties to the suit
Therefore in our opinion reading the plaint as a whole it would be unreasonable to construe cl
d in paragraph 35 in the manner suggested by the learned Attorney General
The prayer which the clause really purports to make is that as administrator should be appointed and that an order should be passed against the respective defendants asking them to deliver possession of the properties to the said administrator
If that we so the plaint cannot be construed as one in which a mere claim for declaration is made
It is a plaint in which a declaration is no doubt claimed but based on the said declaration or adjudication a further claim for possession to the administrator is also made
The result therefore is that the argument that the prayer made in the plaint attracts article 120 must be rejected
The next continuation urged is that the plaintiffs cannot sue for possession but must Confine themselves only to a claim for declaration
It is not disputed by the learned Attorney General that in regard to public charitable trusts the beneficiaries are entitled to sue for setting aside alienations of the trust properties improperly effected by the trustees and to ask for the restoration of possession of the said trust properties to the trustees newly appointed
Indeed there is ample judicial 219 authority in support of this position
In A Subramania Iyer vs P Nagarathna Naicker 1 it was held by the Madras High Court that in a suit by the worshippers of a temple to have the alienation of the trust property by some of the defendants trustees
to the other defendants declared invalid and for possession to the trustees the proper decree to be made if the Court be of the opinion that the alienation is invalid is to decree possession to those defendants who are trustee
It was further held that the trustees need not be referred to a separate suit for the purpose
In masjid Shahid Ganj vs Shiromani gurdwara Parbandhak Committee Amritsar 2 the Privy Council has recognised this right in these words The right of a Muslim worshipper may be regarded as an individual right but what is the nature of the right It is not a sort of easement in gross but an element in the general right of a beneficiary to have the waqf property recovered by its proper custodians and applied to its proper purpose
Such an individual may if he sues in time procure the ejectment of a trespasser and have the property delivered into the possession of the Mutawali or of some other person for the purposes of the waqf 
The argument however is that in regard to private trustee which are governed by the Indian Trusts Act such a course is not open to the beneficiary because of the provisions of s63 of the Trustee Act
Section 63 provides that where trust property comes into the hands of a third person inconsistently with the trust the beneficiary may require him to admit formally or may institute a suit for a declaration that the property is comprised in the trust
The learned Attorney General contends that the only remedy available to a beneficiary under a private trust is that prescribed by 863 and no other
He can either require the alienee to admit that the property is comprised in the trust or if the alienee refuses to make the admission the 1 2 1940 L R 671
A 251 267 220 beneficiary may bring a suit for a declaration in that behalf In support of this contention strong reliance has been placed on the decision of the Privy Council in Rani Chhatra Kumari Devi vs Prince Mohan Bikram Shah 1
In that case the respondent had claimed title to the properties as owner in various ways and had sued as the proprietor of the properties covered by the action
All these grounds were rejected and it was held that the respondent could claim no title as a proprietor at all
Even so while dealing with the question of limitation the Privy Council made certain observations and it is those observations which are pressed into service by the learned Attorney General
Article 144 on which the respondent relied in that case it has been held is applicable only to a possessory suit by the owner of the property claimed against a person holding adversely to him without title and the plea made by the respondent that he was the owner on several grounds was rejected but in the course of its judgment the Privy Council assumed that by reason of the contract pleaded by the respondent the properties were impressed with the continuing trust in favour of the respondent and observed that even so their Lordships were unable to hold that this would entitle him to sue for possession as owner
Sir George Lowndes who delivered the judgment of the Board referred to the fact that the Indian law does not recognise legal and equitable estates
By that law there can be but one owner and where the property is vested in a trustee the owner must their Lordships think the trustee and so the right of a beneficiary is in proper case to call upon the trustee to Convey to him
It is in that connection that Sir George Lowndes further observed that the enforcement of this right would their Lordships think be barred after six years under article 120 of the Limitation Act and if the beneficiary has allowed this period 1 PAT
851 221 to expire without suing he cannot afterwards file a possessory suit until conveyance he is not the owner
It is clear that such a trust as is relied upon in the present case would not fall within s10 of the Limitation Act as it would be impossible to hold that the properties which vested in the appellant under the terms of the wills which have been proved were so vested for the specific purpose of making them over to the respondent
It would thus be seen that these observations mean no more than this that the beneficiary under a private trust cannot claim to recover possession of the property from the trustee so as to attract the application of article 144 of the Limitation Act
He can make the claim for a declaration which would be governed by article 120
It is quite clear that the question as to whether in a proper case the beneficiary can
not apply for the removal of the trustee for the appointment of a new trustee and for the delivery to the new trustee of the property improperly alienated by the previous trustee did not fall to be considered in that case
All that the Privy Council was called upon to consider was whether a beneficiary can bring a suit for possession against a trustee and whether such a suit can be governed by article 144 and in holding that such a suit cannot be brought by the beneficiary the Privy Council pointed out that article 144 postulates a suit by the owner and a beneficiary is not an owner under the Indian Law of Trusts
We are therefore satisfied that the observations on which reliance is placed by the learned Attorney General cannot be said to amount to a decision that in no case can a beneficiary claim that the trustee appointed under the trust should be removed and new trustee should be appointed and the trust properties improperly alienated by the previous trustee should be ordered to be delivered into the possession of the new trustee
Section 63 no doubt provides for the two remedies which are available to the beneficiary but in our opinion 222 section 63 cannot be treated as exhaustive on the subject and so it cannot be urged that a claim for constructive possession like the one made in the present suit is prohibited by 8 63
Prima facie section 10 of the Limitation Act seems to contemplate an action by a beneficiary under a trust to which 8 10 applies and provides that in such an action the beneficiary may follow the property and ask for a proper order 8 to the delivery of the said property to the Dew trustee
If that be so the provisions of section 10 would suggest that the remedies prescribed by 8 63 are not exhaustive
Besides it would be relevant to observe that if section 63 is held to be exhaustive as to the remedies available to  beneficiary it would lead to very anomalous results
If a trustee improperly alienates the trust property the only remedy which would on that view be available to the beneficiary is to obtain a declaration
How would this declaration be effective to bring back to the trust the property improperly alienated Strictly and literally construed section 63 dose not refer to the remedy for the appointment of a new trustee either so that on a literal construction of section 63 even that remedy may be outside its purview but assuming that a beneficiary can ask for a declaration that the property alienated is impressed in the trust and also add a prayer for the appointment of a new trustee that only means that after the new trustee is appointed he will have to sue the alienee for possession and very often this suit would be defeated by the alienee s plea of adverse possession
It is hardly necessary to emphasis that when the beneficiary sues for a declaration as required by section 63 and the alienee resists the said suit the adverse possession of the alienee is emphatically brought out and the pendency of the beneficiary s suit would not affect that position so that on the view that a 63 is exhaustive more often than not the beneficiary s claim would in substance be defeated by the adverse possession of the alienee
223 In Subbaiya Pandaram vs Mahamad Mustapha Maracayar 1 this is exactly what happened
In the presence of the purchaser it was declared that the trust have been validly created and that the property was in fact a trust property
Their Lordships pointed out that at the moment when the said decree was passed the possession of the property was adverse and the declaration that the property had been properly made subject to the trust disposition and therefore ought not to have been seized did not disturb or affect the quality of his possession  it merely emphasised the fact that it was adverse
No further step was taken in consequence of that declaration until the present proceedings were instituted when it was too late
 We would like to add that if for bringing back to the trust the properties improperly alienated by the trustees two suits are required to be filed we apprehend that the second suit by the newly appointed trustee for obtaining possession of the properties would almost always be too late and so section 63 cannot be read as exhaustively dealing with all the remedies available to the beneficiary
We must therefore reject the argument that the suit for possession in the form in which the prayer has been made by the plaintiffs is incompetent
That takes US to the question of res judicata
The argument is that on general grounds of res judicata the dismissal of the suit O section No 30 of 1943 filed by defendants 1 to 6 should preclude the trial of the present suit
It has been fairly conceded that in terms section 11 of the Code cannot apply because the present suit is filed by the creditors defendants 1 to 6 in their representative character and it conducted as a representative suit under o 1 r 8 and it cannot be said that defendants 1 to 6 who were plaintiffs in the earlier suit and the creditors who have brought the present suit are the same parties or parties who claim 1 1923 LR 50 IA 295
224 through each other
Where section 11 is the thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata
We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of section 11 and no other
In our opinion therefore there is no substance in the ground that the present suit is barred by res judicata
The next question which falls to be considered is the most important question in these appeals
We have already seen that three trustees were appointed under the trust deed executed by defendants 1 to 6 and two of the impugned sale deeds have been executed by only two out of the said three trustees
The Courts below have held that two out of the three trustees could not convey a valid title and so on that ground alone the two transfers are invalid
It is urged before us that this conclusion is not justified on a fair and reasonable construction of cl 23 of the trust deed
fore considering this point it is necessary to state the legal position in the matter under the Trusts Act
Section 48 of the Trusts Act provides that when there are more trustees than one all must join in the execution of the trust except where the instrument of trust otherwise provides
It is thus clear that all acts which the trustees intend to take for executing the trust must be taken by all of them acting together
Therefore there can be no doubt that if the validity of the alienations effected by the trustees falls to be considered only in the light of section 48 the fact that out of the three trustees only two have executed the sale deeds would by itself make the transactions invalid and would not convey title to the alienees
This position is not in doubt
Lewin on Trusts has observed that in the case of co trustees the office is a joint one
Where the administration of the trust is vested in 225 Co trustees they all form as it were but one collective trustee and therefore must execute the duties of the office in their joint capacity
it is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinctions all who accept the office are in the eyes of the law acting trustees
If anyone refuses or be incapable to join it is not competent for the others to proceed without him but the administration of the trust must in that case devolve upon the Court
However the act of one trustee done with the sanction and approval of a co trustee any be regarded as the act of both
But such sanction or approval must be strictly proved 1 If one of the trustees refuses to join in the execution of the trust under the Indian law section 34 of the Trusts Act provides for the remedy
The other trustees can apply to the Court as contemplated by 8 34 and the trust may accordingly be executed
As we have seen section 48 contemplates that its provisions will not apply where the instrument of trust otherwise provides
In other words if a trust deed under which more trustees than one are appointed expressly provides that the execution of the trust may be carried out not by all but by one or more then of course the matter world be governed by the special provision of the trust deed
The argument urged by the learned Attorney General is that cl 23 of the trust deed in suit makes such a provision
Both the Courts below have rejected this plea but it is urged that the said conclusion is based on a misconstruction of the relevant clause
Clause 23 has been thus translated by the High Court In all the proceedings to be taken in connection with this estate you three either unanimously or according to the decision of the majority shall act
In the earlier litigation stated by defendants 1 to 6 this clause was thus translated 1 Lewin on trusts 15th ed p 190 226 All the steps to be taken in connection with this estate should be according to the unanimous opinion of all the three of you or as decide1 by the majority
The learned trial judge has made this translation of the clause in the present proceedings In all the proceedings to be taken in connection with the estate all the three should act either unanimously or according to the decision of the majority
The learned Attorney General has supplied us with the literal translation of the clause which reads thus In connection with this estate in all proceedings to be taken you three unanimously or according to the decision of the majority shall act
We have carefully compared all the translations and we feel no difficulty in holding that the translation supplied in the earlier litigation is somewhat inaccurate whereas all the three translations made in the present proceedings substantially agree
Taking the translation supplied by the learned Attorney General it is clear that what this clause requires is that the three trustees shall act and it provides that they shall act according to the decision which may be reached either unanimously or by majority
You three that is to say the three trustees is the subject of the predicate shall act and the words between the subject and the predicate indicate how the decision has been reached
Reading the clause as a whole it is difficult to accept the argument that this clause allows two of the three trustees to act without joining the third trustee in the actual action to be taken in the execution of the trust
It is not necessary under the clause that in the matter of executing the trust every decision must he unanimous
The clause recognises that in some matters decision may be by majority but nevertheless it requires that once a decision is reached either unanimously or by majority in giving effect to the decision and in taking any given action in the execution of the trust all the three must act
Thus read this clause conforms to the statutory provision 227 contained in 8
48 of the Indian Trusts Act and is not intended to provide for an exception to the said provisions at all
It is urged that if no departure was intended to be made from the principles laid down in section 48 the clause need not have been added at all
This argument is wholly inconclusive
There are General other clauses in the trust deed which also bring out provisions corresponding to the relevant provisions of the Trusts Act and this argument may apply to the said clauses as well
The authors of the trust while creating the trust have made elaborate provisions in respect of the trust while creating the trust leave made elaborate provisions in respect of the several matters concerning the execution of the trust and the whole scheme of the trust deed is consistent with the operative cl 23 in that it seems to require all the trustees to act together even though the decisions which they seek to give effect to may have been majority decisions and not unanimous decisions
Therefore in our opinion the Courts below were right in holding that cl 23 like the main provision of section 48 requires that all the trustees should have joined in the execution of the sale deeds in question
That being so Exs
B 91 and B 37 which are respectively executed in favour of defendant 14 and defendant 13 are invalid and can pass no title to the alienees on the ground that only two out of the three trustees have executed them Vide Lala Man Mohan Das vs Janki Prasad 1
In support of the validity of these transfers an alternative argument has been urged before US
It is pointed out that according to Lewin on Trusts if the act to the two trustees has been done with the sanction and approval of the third trustee then it may be regarded as an act of the three trustees and it is urged that in the present case the third trustee had consented and shown his approval to the transactions in question
The two sale deeds have been executed by defendant 7 and Veerabahu 6 1944 L R 72 T A 39
228 Pillai and they do not bear the signature of Narayana Pillai but this
alternative contention proceeds
on the assumption that though Narayana Pillai did not sign the document exhibit B 94 he had in fact consented to it and had shown his approval to the transaction
This argument however cannot be accepted having regard to the concurrent finding recorded by the Courts
below on this point
Dealing with this question the trial court has referred to the discrepant versions given for Narayana Pillai not joining in the execution of the sale deed
He points out that no mention is
made in the sale deed as regards
the circumstances under which the third trustee did not join
Then he examines the evidence given by defendant 7 and points out the infirmities in the said evidence
He compares
the evidence given by defendant 13 in the previous
suit and observes that the explanations
given are inconsistent
One of the explanations was that Narayana Pillai declined to come to the Sub Registrar s office as he was
heavily involved and that people would think that he was selling his
property
The other explanation was that Narayana Pillai wanted come accommodation and when his co trustees refused to agree he declined to join the execution of the document
The trial court has observed that there was nothing to show that Narayana Pillai was financially involved at the relevant time and he points
Out that in fact Narayana Pillai had gone to the sub Registrar section Office near about that time in connection with another transaction
That is how the trial court has rejected the argument that Narayana Pillai was a consenting party to the transaction in question
The High Court has concurred with this conclusion
In dealing with this question the High Court has preferred to believe the evidence of the first defendant that Narayana Pillai considered the prices fixed for exhibit B 94 as very low and for that reason refused to be a party to it
It has contrasted this reason with the other reasons given on behalf of the alienees and it has recorded its conclusions in these words 229 Whatever may be the reason it is certain that Narayana Pillai was not a consenting party to the transaction and there being no other evidence by way of minutes of any meeting of the trustees had decided with the knowledge of Narayana Pillai though he had dissented we are unable to hold that there has been such a decision of the majority as would bind the dissenting trustee
It does appear the original draft of exhibit B 94 was made on the assumption that all the trustees would join in the execution of the document but the hope and anticipation formed by the two trustees was believed and so the document was ultimately executed by two of them without Narayana Pillai joining
We have considered the evidence to which our attention was invited in this connection and we see no reason to interfere with the concurrent conclusion recorded by the Courts below that Narayana Pillai was not a consenting party to the transfer in question that being so the alternative ground made in support of exhibit B 94 fails
If the transfers in favour of defendant 14 exhibit B 94 as well as Ex
B 37 in favour of defendant 13 fail on this ground it is really not necessary to consider the further question as to whether both the said transfers were effected for grossly inadequate consideration
The next question which has been raised on behalf of defendant 14 is in regard to the amendment made by the High Court in its decretal order
It is urged that this amendment was made after the appeals to this court had been admitted and so it is without jurisdiction
It appears that the certificate was granted by the High Court to the respective defendants who have come to this Court as appellants on November 26 1954 and the appeals were admitted on December 4 1955 whereas the amendment has been made after the appeals were admitted
The application for the amendment in question was made under section 151 and 152 of the Code and it became necessary because the decretal order drawn in the High Court referred to the profits 230 of which accounts were directed as mesne profits
The use of the words mesne profits would have inevitably brought ill the period of three years beyond which accounts could not be claimed
By r J their application the plaintiffs alleged that the use of mesne profits in the decretal order was inconsistent with the judgment which had directed accounts of the net profits as so they claimed that the decretal order should be corrected in cl
III sub cl3
According to the prayer thus made it was suggested that the clause should read as follows that the defendants 12 13 and 14 are liable for the net profits of the properties purchased by them under schedule V schedule II and schedule I respectively The word net profit was used in the place of mesne profits originally introduced ill the order
When this application for amendment was argued before the High Court the defendants pleaded that the use of the words mesne profits was proper and should not be changed
It was urged on their behalf that in its judgment the High Court had introduced the words mesne profits deliberately and so the decretal order was perfectly correct
This contention has been negatived by the High Court and in our opinion rightly
It appears that in the earlier portion if his judgment Krishnaswami Naidu J summarised ill one paragraph the effect of the decree passed by the trial court and in giving this summary he observed that under the decree defendants 12 13 14 and 16 were held entitled to be paid the respective considerations of the sales and mortgages together with interest they being liable to account for mesne profits as per the terms of the decree
Two things are clear
Th s part of the judgment does not contain the decision of the High Court at all
It is really concerned with the narration of the relevant facts and it purports to summarise the effect of the decree and nothing more
Besides the use of the words mesne profits in the context is obviously the result of inadvertence because the decree of the 231 trial court had in the relevant clause used the words net profits and not mesne profits
Thus there can be no doubt that the decretal order drawn in the High Court through error introduced the words mesne profits and such an error could be corrected by the High Court under sections 151 and 152 of the Code even though the appeals may have been admitted in this Court before the date of correction
But apart from this technical argument about the jurisdiction of the High Court to make the correction the point in question has been raised on the merits before us and it is urged that the plaintiffs are not entitled to anything more than three years  profits from the respective defendants
The argument is that article 109 of the Limitation Act applies to such a claim and the claim is confined to three years under that article
Article 109 deals with claims for profits of immovable property belonging to the plaintiffs which have been wrongfully received by the defendants and it prescribes there years  period of limitation commencing from the time when the profits were received
Normally there is no doubt that a successful plaintiff would be entitled to mesne profits for three years and not more but in the present case we are dealing with a claim made by the plaintiffs on behalf of the trust and the decision in their favour has rendered it necessary to adjust equities between the trust and the respective alienees alienations in whose favour have been set aside as invalid
We have already seen that having set aside the alienations in favour of defendant 14 and others the Courts below have directed that the alienees should get the amounts due to them from the trust
It has also been directed that interest at the rate awarded by the decree should be paid to them on the said amounts
This clearly is an equitable relief granted to the alienees
Having held that the alienees should get interest on the amounts due to them from the dates of their respective mortgages or 232 sales the Courts in fairness have directed that the alienees in turn should give an account of the net profits of the properties which were wrongfully in their possession commencing with the date when 7 they got possession
If the technical argument based on article 109 is upheld as a matter of law there would be no scope for giving equitable relief to the alienees as all and they may be driven to file fresh actions to recover their claims and such actions would have to face the possible plea of limitation
That is why the High Court has observed that the question about the net profits awardable to the trust and interest awardable to the alienees involves considerations of equitable adjustment and it is by way of an equitable adjustment that the relevant directions have been issued by the decree
It is not disputed that the Court had jurisdiction to make such an equitable adjustment
Indeed in many cases of this type Courts have made equitable adjustments between rival parties Vide Satgur Prasad vs Har Narain Das 1 Bhagwat Dayal Singh vs Debi Dayal Sahu 2
The principal and interest ordered to be paid to defendant 14 and the profits ordered to be paid by him are thus integral parts of on equitable adjustment between the plaintiffs and defendant 14
It is also urged on behalf of defendant 14 that the High Court was in error in modifying the decree passed by the trial Court by changing 10 12 interest at compound rate to 10 12 simple interest in favour of defendant 14
The contention if that under the mortgage executed in favour of defendant 14 Erg B 95 the contract rate was 101 compound interest and as mortgagee defendant 14 was entitled to that rate
In support of this argument reliance is placed on the decision of the Privy Council in Jagnnath Prasad Singh Chowdhury vs Surajmal Jalal a
In that case the Privy Council has held 1 1932 L R 59 1
AA 147
2 1908 L R 35 I A 48 59
3 1926 LR 54 I A 1 233 that on a preliminary decree for foreclosure or sale under O XXXIV rr 2 4 of the Code a mortgagee is entitled to interest at the rate and with the 
rests stipulated in the mortgage down to this date filed for redemption by the decree
This position 6 cannot be disputed but the answer to the plea is that the present decree is not passed in an action instituted by defendant 14 as a mortgagee
The present decree is passed while adjusting equities between defendant 14 the alienation in whose favour is set aside his rights as mortgagee are equitably recognised and thereby further litigation is avoided
Since the decree by which defendant 14 is allowed to recover his mortgage dues has been passed for giving him equitable relief it was open to the High Court to consider whether compound interest should be paid to him or not
As the High Court has pointed out while adjusting equities between the parties the mortgage does not become revived as such but the relief granted to the 14th defendant is based on equity and justice and so the High Court thought that the interests of justice would be met if he is paid out of the sale proceeds the principal amount of the mortgage with simple interest at 10 12
We have carefully considered the contention  raised by the learned Attorney General in this behalf but we do not think that we would be justified in interfering with the modification made by the High Court in the decree passed by the trial court
In the result Civil Appeal No 62 of 1959 files by defendants 14 and 18 to 24 fails and is dismissed with costs
We now turn to Civil Appeal No 77 of 1959 filed by defendants 12 13 and 16
We will take the case of defendant 12 first
We have already seen that in favour of defendant 12 a sale deed has been executed on November 7 1941 exhibit B 90
This sale deed has been set aside on two grounds one that it is executed in favour of a person who by intermeddling with the estate of the trust has 234 become trustee de son tort and second that the properties covered by the document have been sold for inadequate consideration
It is conceded by Mr Ganapathy Iyer that if we confirm the J finding recorded by the Courts below against defendant 12 on the first point that it self would invalidate the transfer in his favour
He has however argued that the said finding is erroneous
Having carefully considered the relevant material we see no reason to interfere with the finding in question
In this connection it would be enough if we briefly refer to the relevant evidence bearing on this point
Defendant 12 wrote to Pichu Ayyar Avergal defendant 15 who was a clerk of the trust estate on August 20 1936 in these words request you that Pathai properties may be checked that Piramanayakam Pillai coming there may be consulted with regard to all matters and settlement made and that you may also come here on Monday morning and render necessary assistance
The tone of the communication and its contents are significant
It is not the language of a person who is merely assisting the trustee
He is issuing directions to the clerk of the trust
Defendant 12 was a creditor of defendants 1 to 6
It is however common ground that when sale deed exhibit B12 was executed in favour of defendant 13 on December 19 1936 defendant 13 who is no other than the brother of defendant 12 had undertaken to satisfy defendant 12s debt and so as from that date defendant 12 had ceased to be a creditor of the estate
Even so he was intermeddling with the estate throughout
On October 141938 he wrote to the Agent of the Travancore National and Quilon Bank suggesting that he would pay a sum of Rs 10000 for the entire amount payable to the bank by the debtors and he requested the Bank to have the debt discharged in that manner
Then he added that as the price of the lands have gone down very much owing to conditions at the present time he requested that the sum of Rs 10000 may 235 be received and that the entire debt should thus be discharged
It would be noticed that at this date defendant 12 was not a creditor of the estate and he had therefore no business to write to the Bank
This letter like the earlier one which we have already seen clearly indicates that defendant 12 had taken it upon himself to administer the trust
To the same effect is another letter written by him to the official Liquidator of the said Bank on January 9 1939
In this letter defendant 12 says that the trustees are arranging for several settlements in deference to the wishes of Mr Ayyah Sastri but owing to the nature of time the matter stands unsettled even though both are agreed willingly 
Then he refers to the proposal to settle all the debts and promises that the matter will be finally settled if the trustees meet you personally
I therefore request you  says defendant 12 to kindly excuse the little delay and pray to fulfill the great task and he adds  I am also coming there
Then followed a suit by the Bank No 12 of 1939 to which defendants 12 and 13 were impleaded and in this suit defendants 12 and 13 entered into a compromise with the plaintiff Bank and obtained a compromise decree
It is unnecessary to refer to the terms of the compromise decree
What is material is the conduct of defendant 12 in entering into compromise with the Bank
Defendant 13 may have been justified in entering into the compromise but defendant 12 could have done to only as an intermeddler
This decree was passed on February 14 is also relevant on this point
This is a notice issued to defendant 12 by one of the creditors of the estate
It appears that this creditor had given to defendant 12 a receipt signed by him in order to enable defendant 12 to draw the amount from defendant 14 to be paid to the said creditor
The notice further recites that it now transpires that about the middle of July 1937 you drew the said amount of Rs455 from the said Janakirama Iyer and have 236 failed till now to account for the same to my client
In other words this notice shows that defendant 12 had promised to pay to the creditor Rs 425 due to him from the estate and had failed to do so
The result was the suit by the creditor Small Cause Suit No 58 of 1940
This suit again was compromised by defendant 12
There is yet another document Ex 121 which shows how defendant 12 was intermeddling with the estate
This is a receipt passed by the clerk of the estate to one Subbayyar Avergal on March 9 1937
It reads thus According to the order directed by defendant 12 I have received from you on this date Rs 400 from the sale of the current Pisanam paddy produce from the estate of M R Ry
PS Krishnaswami Ayyar Avergal vagaira Kalakkadu Pannai
It is clear that the clerk of the estate Pichandi Ayyar who passed the receipt had been directed by defendant 12 to receive Rs400 from Subbayyar Avergal
The had accordingly received that amount and passed a receipt in that behalf
Now is
defendant 12 directed the clerk of the estate to receive a certain amount for and on behalf of the estate it clearly amounts to intermedding with the estate and it makes him trustee de son tort
Defendant 12 had given evidence in the earlier litigation in which he had stated that he defendant 13 and Veerabahu Pillai were members of an undivided family
In the present proceedings defendant 12 has gone back upon his admission that he and his brothers constituted an undivided family
The trial court has accepted this latter plea and the High Court has not differed from it but that apart the several statements made by defendant 12 in the said evidence clearly show that he was taking as much active part in the affairs of the trust as his brother Veerabahu
There is yet another fact to which reference may be made
As the High Court has pointed out the sale in favour of defendant 12 was executed on 237 November 7 1941 and yet the properties covered by the said document appear to have been put in his possession as early as 1937
In other words defendant 12 entered into possession of the properties nearly four years before the sale was executed in his favour
It is in the light of these facts that the Courts below have held that defendant 12 is a trustee de son tort
As is observed is Williams on Executors and Administrator1 a very slight act of intermeddling with the goods of the deceased will make a person executor de son tort
In the present case the acts of intermeddling by defendant 12 spread over a fairly long period and cannot in any sense he regarded as minor and insignificant
We would accordingly hold that defendant 12 is in the position of trustee de son tort and to the sale deed executed in his favour Ex
B 90 is bad on that account alone
In regard to defendant 13 there are two transactions in his favour exhibit B 37 and exhibit
exhibit 37 as we have already seen is invalid for the reason that it has been executed by two out of the three trustees
That leaves exhibit B 79 but before we deal with that transaction it would be relevant to refer to a general consideration which applies to all the transfers in favour of defendants 12 13 and 16
Defendants 12 and 13 are the step brothers of Veerabahu and defendant 16 is the son in law of defendant 13
It is quite clear that under section 52 of the Trusts Act no trustee whose duty it is to sell trust property and no agent employed by such trustee for the purpose of the sale may directly or indirectly buy the same or any interest therein on his own account or as agent for a third person
This position is thus stated by Lewin on Trust A trustee is absolutely and entirely disabled from purchasing the trust property whether it be real estate or a chattel personal land or a ground rent in reversion or possession whether the purchase be made in the trustee s own name or 1 Williams of Executors and Administrators 14th ed
 Vol 1 p 28 238 in the name of a trustee for him directly or indirectly as to a purchaser upon a contract or understanding amounting to more than mere expectation that the purchaser shall re sell to the trustee by private contract or public auction from himself as the single trustee or with the sanction of his co trustees1
Thus the alienations by the trustees in favour of the near relatives of one of the trustees would be bad for this reason
Besides under section 47 of the Indian Trusts Act a trustee cannot delegate his office or any of his duties either to a co trustee or to a stranger unless the instrument of trust so provides or the delegation is in the regular course of business or the delegation is necessary or the beneficiary being competent to contract contents to the delegation
The trust did impose upon the trustees the obligation to sell the properties of the trust at the highest price recoverable and to distribute the sale proceeds amongst the creditors of the authors of the trust
The documents in favour of defendants 13 and 16 seem to leave it to the respective purchasers to pay the debts and that map be another infirmity in the transaction
Going back to exhibit
B 79 which is a transfer in favour of defendant 13 it is evident that this transaction is inevitably connected with another transaction exhibit B 25
exhibit B 79 has been executed for a consideration of Rs2000 and odd and it relates to 3 acres and 14 cents of schedule VIII property
It appears that defendant 13 had obtained another sale deed exhibit B 25 on April 19 1937 This sale deed consisted of 51 items of property belonging to the trust which had spread over five villages
These items consisted of house sites and lands
The sale deed was for Rs 5000
Defendant 13 in his turn proceeded to sell the said property by different lots to respective buyers
Amongst the creditors of the estate was Lakshmi 1 Lewin on Trusts 15th ed p 797
239 Ammal to whom Rs 800 was payable on the basis of 50 of return of debt
Defendant sold to I Lakshmi Ammal 64 cents out of the lands purchased by him under exhibit B 25
It however appears that in respect of the 3 acres and 14 cents which 7 was the subject matter of exhibit B 25
Original Suit No 32 of 1941 was instituted by persons who claimed title to the said property
To that suit Lakshmi Ammal was impleaded as to defendant and so was defendant 13
Ultimately the said suit was decreed and the property in question was held to belong to the plaintiffs in that suit and not to the estate of defendants 1 to section It was as a result of this decree that exhibit B 79 came to be passed in favour of defendant 13
This document purports to convey 3 acres and 14 cents of another property to make good the lose to him by reason of the decree in Suit No 32 of 1941
Thus it would be seen that the transaction evidenced by exhibit B 70 can stand only if the transaction by evidenced by exhibit B 26 is valid and not otherwise
The Courts below have held that this latter transaction is obviously and patently invalid
In our opinion this conclusion is right
It is true that exhibit B 25 is not directly challenged in the present suit because the properties covered by it have been sold to different purchasers by defendant 13 and they have not been impleaded
Even so since exhibit B 25 is the very foundation of exhibit B 79 it is open to the plaintiffs to contend that the validity of Ex 26 should be considered for determining the validity of exhibit B 79 and that is what the Courts below have done
Now one has merely to look at the broad features of exhibit B 25 to be satisfied that it is an invalid transaction
It is patent that no attempt was made to value the properties individually
The properties numbering 51 and spread over five villages were all grouped together and sold for Rs 5000 without making any serious efforts to determine the value 240 of the lot
The purchaser was told to sell the properties to the respective creditors of the estate and thus satisfy them
The in substance is delegation of the functions of the trustees which they could not J delegate to defendant 13
The stamp paper for the sale deed exhibit B25 stands in the name of Veerabahu Pillai and defendant 13 was unable to explain how the stamp paper came to be in that name
Defendant 13 admitted that he did not inspect the property before its purchase and that he had no idea about its value
As the trial court had observed the transaction cannot be regarded was a bona fide sale because the property consists of odd assortment of punja lands and house sites in Pathi Padmaneri and Sivalpuri villages
Therefore we have no difficulty whatever in agreeing with the conclusion of the Courts below that exhibit B 25 was invalid if that be so exhibit B 79 must be held to be invalid for that reason alone
Incidentally we may refer to the fact that defendant 13 admitted in the earlier suit that he had not refunded the purchase money to Lakshmi Ammal and that substantially destroys the basis of exhibit B 79 because defendant 13 not having paid anything to Lakshmi Ammal had no right to retain the property conveyed to him
The last transactions which have yet to be examined are those in favour of defendant 16
In regard to these transactions the trial court has found that evidence adduced by the plaintiffs shows that the consideration for which properties were sold were grossly inadequate
The vendee defendant 16 did not care to examine himself
Besides as we have already pointed out he is a close relation of defendants 12 and 13
The High Court has concurred with the trial court s conclusion
The only point which was attempted to be made by Mr Pattabhiraman in challenging the correctness of this concurrent conclusion is that the Courts appear to have assumed that the agricultural lands conveyed to defendant 16 were all double crop lands
On this assumption he suggested that 
241 the calculation made about the true value of the said properties errs on the side of overstatement
It is not disputed that of the lands conveyed 3 12 acres and 24 cents are single crop while approximately 3 acres are double crop
On looking at the judgments of both the Courts below however we are satisfied that the argument is misconceived because neither judgment proceeds on the assumption that the whole of the agricultural property is double crop land
In fact the discussion in the judgment of the trial court on Issue No 27 quite clearly negative the assumption made by Mr Pattabhiraman
that being so as the Courts below have observed evidence led by the plaintiffs in support of their case that the transfers were effected for grossly inadequate price has remained unrebutted
The question about the value of the property has been determined on the evidence documentary and oral led in the case and both the Courts have found in favour of the plaintiffs and against the alienees
Incidentally we may point out that Mr Viswanatha Sastri appears to be right when he suggests that schedule VII refers to the properties both at Thirukurunkudi as well as Padmaneri though the heading of the schedule refers only to Thirukurunkudi
In the result Civil Appeal No 77 of 1959 preferred by defendants 12 13 and 16 fails and is dismissed with costs
Appeals dismissed


Summary:
These appeals arose out of a representative suit filed on behalf of the creditors of defendants I to 6 who hat executed a trust deed on August 26 1936 conveying their properties to three trustees with authority to dispose of the one and distribute the ale proceeds ratably amongst the creditors
The trust deed required the three trustees to act according to the decision arrived at either unanimously or by majority The trustees accepted the trust and conveyed all the properties except the family house in administration of the trust
Two of the sale deeds in favour of two of the creditors defendants 13 and 14 a mortgagee creditor in the suit were executed by only two or the trustees 
In a suit brought by the said defendants 1 to 6 for administration of trust the trial court passed a preliminary decree
The High Court on appeal remanded the matter to the trial court for a finding as to the market value of the lands sold
The trial court submitted its finding
At this stage defendants 1 to 6 withdrew the suit which we dismissed
The present suit under O I r 8 of the Code of Civil Procedure we filed on October 29 1947 before such withdrawal
The claimed made therein inter alia were for a declaration that the properties in question were still impressed with the trust for the removal the surviving trustee and appointment of an a administrator to realise the amount recover position of the properties and re sell them
The trial Judge passed a decree infavour of the plaintiffs 
The High Court in substance confirmed that decree but modified it by awarding simple interest 207 instead of compound Interest decreed in favour of defendant 14
The two sale deeds executed by only two of the trustees were declared invalid and it was found that the third trustee did not give his consent to it
The sale deed in favour of defendant 12 was declared invalid on the ground that he had intermeddled with the trust estate and had thus become a trustee de sou tort
The courts below also rejected the pleas of limitation and res judicata raised on behalf of the defendants
Some of the creditor detendants appealed
After the appeals had been admitted by this Court the High Court amended the decretal order by substituting the words mesne profits  by net profits  under sections 151 and 152 of the Code of Civil Procedure
 Held that the question whether article 120 or article 134 of Indian Limitation Act applied to a case had to be decided on the case made in the plaint read as whole and properly construed
Since the present suit was not one for a mere declaration but for possession of property having been valued and framed as such deliverable to the administrator it was governed by article 134 and not by article 120 of the Act and was thus within time
It was not correct to say that section 63 of the Indian Trust Act was exhaustive as to the remedies available to a beneficiary under a private trust or that claim for constructive possession such as was made in the present suit was prohibited under that section
Rani Chhatra Kumari Devi vs Prince Mohan Bikram Shah Pat 851 distinguished
Subbaiya Pandaram vs Mohammad Mustapha merachayar  1923 L R 50 IE A 295 A Subramania Iyer vs P Nagarathna Naicker  191020 Mad
L J 151 and Masjid shahid Ganj vs Shiromani Gurdwara Prabandhak Committee Amritsar 1940 L R 67 I A 251 referred to
Nor could the suit be said to be barred by res judicata since it did not fall within the scope of section II of the Code of civil Procedure
The suit being one under o 1 r 8 of the Code it could not be said that defendants I to 6 plaintiff in the earlier suit and the creditors plaintiffs in the present suit where the same party or parties claiming through each other
Clause 23 of the trust deed properly construed conformed to the provision of section 48 of the Trusts Act that where there are more trustees than one they must all join in the execution of the trust and did not provide for an exception to that rule even though it provided that decisions by the trustees need not a ways be unanimous but could be by majority as well
Such sale deeds as had been executed by 208 two of the trustees only must therefore fail
The alternative
case of consent given by the third trustee to the transaction could be of no avail since it could not be substantiated by evidence Lala man Mohan Das vs Janaki Man Prasad 1944 L R 72 I A 39 referred to
The High Court had jurisdiction under sections 151 and 152 of the Code of Civil Procedure to correct the obvious error in the decretal order even though the appeals from the said decree had already been admitted by this Court
Nor could the amendment be challenged on merits
Although a successful plaintiff would not normally be entitled to mesne profits for more than three years in view of article 109 of the Limitation Act the court had jurisdiction in the case of a trust to make appropriate direction in the decree while awarding net profiles to the trust and interest to the mortgagee in adjustment of the equities between them
Salgur Prasad V Har Narain Das 1932 LR 59 I A 147 Bhagwat Dayal Singh vs Debi Dayal Sahu 1908 L R 35 I A 48 and Jagannath Prasad Singh Chowdhury vs Surajmal Jalal  1926 L R 54 I A 1 referred to
Even slight intermeddling with the trust estate is sufficient to make a person trustee de son tort
Since in the instant case the acts of intermeddling by one of the defendant covered a fairly long period the courts below were right in holding that the sale in his favour must be set aside as one in favour of a trustee de son tort