L. JANAKIRAMA IYER AND OTHERS versus P. M. NILAKANTA IYER AND OTHERS

Citation: [1962] SUPP. 1 S.C.R. 206 · Decided: 26-10-1961 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed

Judgment (excerpt)

IHl 
Oct#nll. 
!06 SUPREME OOURT REPORTS (1962] SUPP. 
L. JANAKIRAHA IYER AND OTHERS 
v. 
P. M. NILAKANTA IYER AND OTHERS 
(B. P. Sm11&, C. J., P. B. GA.JXNDR4GA.DIUR and 
R.A.GJIUJIAB DAYAL, JJ.) 
'l'rwt-Dtblor1 cr.n"'lli11f P""]Wly to thru tnutu1 /or 
repayment of ddi11--.A4minillraUon suit by debtor• dinniut4 
o" 111ilhdra111<1/,-Sul>ltqiunt suit on bthal/ of gttural body of 
crdilor1--I/ barred by res judicata-Limilalion claim /or 
pos1twta-Mairil4'nability-Sak <lui tucuttd by llPO of tM 
thm lruatu1-Validilg-A1Mrtdmtnl of ckcru by High Court 
afttr admiuion of "'PpuU by S11prt- Court-A11>1Jrd of "'' 
projJt ID tnut utalt eflll intuut to morlgagtt-Adjuslmenl of 
tquilit•-01111rl'• power-Validity of alit11ation in /aoour of 
pt.1'809 inltrmtddli11g with tnut ulaft-Truslu de son tort-
lftdian Trust~ Act, 1882 (2 of 1882), u. 48, 63-Cod• of Civil 
Proctd111·e, 1908 (Act Y of 1908), 88. 11, 161and162-lndian 
Limi~1 Act, 1908 (IJC of 1908), Arta. JIU, 120. 
ThCJC appeals arose out or a representative sult 
filed on ~half of the crediton of defendants I to 6 who 
had executed a trust deed on August 26, 1936, conveying 
their properties to three trustees with authority to dispose 
of the same and distribute the sale proceeds rateably 
amongst the credlton. The tru1t deed required "the three 
trustees to act accordfn~ to the decision arrived at either 
unanfmonsly or by m&Jority." The trustees accepted the 
trust and conveyed all the properties e•cept the family 
house in admini1tralion of the trust. Two of the 'ale dteds 
in favour of tt.>o of the creditors,. defendants 13 and I 4, a 
mortgagee creditor, In the 111it were executed by only two 
of the trustees. 
In a suit bronght by the said defendants 
I to 6 for adminiJtratlon of the trust, the trial court passed 
a preliminary decree. The High Court on appeal remanded 
the matter to the trial court (or a finding aa to the market 
value of the lands sold. The trial court submitted its 
finding. 
At this stage defendants I to 6 withdrew the suit 
which was dismisoed. The preoent suit under 0. I, r. 8 of 
the Code of Civil Procedure was filed on October 29, 1947, 
before such withdrawal. The claims made therein, inler 
11/ia, were for a declaration that the properties In question 
were still impressed with the trust, for the removal the 
Rll'Vivin1 trustee and appointment of an admini.trator to 
l'Cll!iae the amounts, recover possession of the properties and 
re-sell them. Tbe trial Judge paued a decree in favour of 
the plalntilra. The Hi1h Court In substance confirmed 
that decree but modified It by awarding aimple interest 
(I} s.c.R, 
SUPREME COURT REPORTS 
207 
ins~ad of compound Interest decreed in favour of defend· 
!\nt 14. The two sale deeds, executed by only two of the 
trustees, were declared in valid 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 imalid on the ground 
that he had intcrmeddled with the trust estate and had thus 
became a trustee dt 1ou tort. The courts below also rejected 
the picas of limitation and res j1'dicata raised on behalf of 
the defendants. Some of the creditor defendants appealed. 
After the appeals had been admitted by this Court the High 
Court amended the decretal ·order by substimting the word• 
'mesne profits' by 'net profits' under ss. 151 and 152 of the 
Code of Civil Procedure. 
Held, that the question whether Art. 120 or Art. 134 
of Indian Limitation Act applied to a case bad 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 adminis· 
trator, it was governed by Art. 134 and not by Art. 120 of 
the Act and was thus within time. 
It was not correct to say that 1. 63 of the Indian Trust 
Act was exhaustive as to the remedies available to a bene-
ficiary under a private trust or that a claim for constructive 
possession, such as was made in the present suit, was pro-
hibited under that section. 
Rani Chhatm K umari Devi v. Prince Mohan Bikram 
Shah, (1931) I. L. R. 10 Pat. 851, distinguished. 
Subbaiya 
Pandaram v. Mohammad M"stapha Mara· 
chayar, (1923) L. R. 50 I. A. 295, A Subramania Iyer v. 
P. Nagarathna Naick.r, (1910)20 Mad. L. J. 151 
and 
Masjid Shahid Ganj 
v. 8hiromani Gurdwara Prabandhak 
Committee Amrit~ar, (1940) L. R. 67 I. A. 251, referred to. 
Nor c

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