These two appeals arise out of a suit by the plaintiff-respondent for a declaration that a mortgage-decree in favour of the appellant in A.S No. 195 is not binding on the subject-matter of the mortgage, and to recover certain lands sold to the appellants in A.S No. 269, on the ground that the respective mortgage and sales were of property belonging to a public charity and were made in breach of trust by the alienor, the 1st Defendant.
The lands in question were dedicated to charity by one Valliammi Anni. This appears from an authenticated copy of this lady's will which has been produced by a French Notary. The lady resided in Karaikal; her will was made there and was executed and deposited in a Notary's office in accordance with the French law. It was not disputed in argument by Mr. Patanajali Sastri, the learned Counsel for the appellant in A.S No. 195, that there is a charitable trust or that under the terms of the will the plaintiff would be entitled to the trusteeship if he had by adoption become a member of 1st defendant's family in which the trusteeship of the charity was vested. Dr. John, however, on behalf of the other set of appellants has addressed to us an argument, which will be dealt with later, on the construction of the will in relation to 1st defendant's power to alienate the property. But all the appellants dispute the fact of the plaintiff's adoption, and it is common ground that if he was not adopted by 1st defendant he has no claim to be a trustee of Valliammi Anni's charities, which is the character in which he has brought his suit.
The plaintiff's adoption is alleged to have taken place on 12th May 1920. A registered adoption deed (Ex. A) of this date has been produced. This, in short, recites that, 1st defendant having no male issue nor any hope that one would be born to him, it was necessary to make arrangement for his salvation in the next world and for the maintenance and marriage of his three daughters; that he had accordingly got his father-in-law, Muthukumara Mudaliar, to give him his son, aged 18, namely the plaintiff, in adoption, and that he had settled all his properties on this son subject to a maintenance for himself and his wife. It was suggested by the appellant's learned Counsel that 1st defendant's motives were far less commendable than appears from the recital in the deed. It is in evidence that he was leading a vicious life lavishing money on a dancing girl until her death in 1920, and the suggestion is that this adoption was a device for getting back through the plaintiff's agency properties which had been improperly alienated by 1st defendant from the trust. By way of showing that this so-called adoption was a sham it has been pointed out that 1st defendant was not more than 35 or 36 at the time, that his wife had already borne him three daughters, and, in point of fact she bore him a son two years afterwards, so that despair of male issue might be regarded as premature. Moreover, the evidence as to his state of health at the time did not denote any urgency for an adoption. Another point made against the probability of the adoption is that two years later the plaintiff was married to one of 1st defendant's daughters; but the plaintiff's witnesses have stated that such a marriage is in conformity with the usage of the community, and there was no cross-examination as to the truth of this statement. Again, the failure of the plaintiff to go into the witness-box has been justly criticised as indicating no confidence in his ability to support the story of his adoption. This is not a case of the adoption of a child who would have no recollection of what had taken place, but the plaintiff was 18 years of age at the time and he would, therefore, have been quite capable of testifying to the act and to the fact of adoption. No doubt these matters would have an important bearing if there had been a conflict of evidence upon the fact of the adoption. But the evidence in the case is all one way. Five persons, P. W. 1, the defendant's widow (he died when the suit was pending), P. W. 4, a purohit, P. Ws. 6 and 8 and P. W. 10, a village Munsif, all depose to have been present and witnessed the adoption ceremony. Their evidence stands uncontradicted, and no reason has been given why it should be disbelieved. Another witness, P. W. 9, a Sub-Magistrate, stated that on the evening of the adoption the 1st defendant told him that he had made the adoption and had executed an adoption deed. P. Ws. 4, 6 and 10 also speak to the execution of the deed, and Ex. A, which bears their signatures as attesting witnesses, corroborates what they say. In the face of this direct evidence, and in the absence of any evidence to the contrary, it is not possible to hold otherwise than that the fact of adoption has been proved.
It was next contended that the question of the validity of the mortgage was res judicata by reason of the mortgage-decree passed against the plaintiff ex parte in a former suit No. O. S., 37 of 1925, and that he is thereby estopped from raising any question as to its binding character in this suit. The pleadings and the judgment in the former suit are not before us; but it appears from the decree that the plaintiff was impleaded in that suit as the son of one of the mortgagors, Muthukumara Mudaliar, and, as such, a person interested in the equity of redemption. To all appearances, therefore, he was sued in his personal character and not in the character, in which he has brought this present suit, of a trustee of the charity. Sect. 11 Civil Procedure Code requires that not only must the matter in issue be substantially the same in the two suits, but that the parties shall be litigating under the same title. A person litigating in the character of a trustee is certainly not litigating under the same title as when he litigates in his private and personal capacity. This was the view expressed in Narain Das v. Kazi Abdur Rahim and it is in accordance with the English rule, that a verdict against a man suing in one capacity will not estop him when he sues in another distinct capacity, and, in fact, he is a different person in law: see Smith's L. C. Vol. 2 p. 675. In our opinion the plaintiff was not estopped by the decree in the former suit.
Lastly, it is contended that the suit is time-barred. Art. 120 of the Limitation Act is applicable. The question is, when did the plaintiff's right to sue accrue? To determine this it is necessary to see what is the nature of his suit and of the relief sought. The suit was for a declaration that the mortgage decree in the former suit was not binding on the trust property, not for a decree setting aside the mortgage. The position was, that 1st defendant had borrowed money from appellant and given him a simple mortgage on the trust property. That mortgage, not having been given for any purpose binding on the trust, could confer no rights over the trust property upon the mortgagee. He had a mortgage which was unenforceable against the trust property. Until he did something to enforce that mortgage against the trust property what right to sue had the plaintiff? “There can be no right to sue” said their Lordships of the Judicial Committee in Bolo v. Koklan “until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted”. Applying that doctrine to the facts of the present case, we think that there was no threat to infringe the plaintiff's rights before the appellant instituted his mortgage-suit, and as the plaintiff's suit has been brought within 6 years from that event it is in time.
Turning now to A. S. No. 269, the appellants in their written statements raised the defence that they were purchasers for value without notice of the trust; but none of them went into the witness-box to support this plea. The point which has been argued by their learned Counsel in this appeal is that under the terms of Valliammai Anni's will the 1st defendant had absolute power to alienate the property. The material portions of the will are as follows:
“As I have no posterity I have appointed, as my sole heir and universal legatee, my brother Subbaraya Mudaliar. I have bequeathed to the aforesaid Subbaraya Mudaliar the immovable and movable properties, the vessels, jewels made of gold, silver and other metals, the cash and outstandings—all these belonging to my estate.”
Then follows a schedule of two items of immovable property. The will continues:
“These I have bequeathed to the said Subbaraya Mudaliar, so that he might hold and enjoy them with power to make alienations thereof by way of gifts, exchange, sale etc.”
“The remaining properties, viz., all the Samudayams such as, nanja, punja manaikat, manai kollai, tope, etc., pertaining to my share in the aforesaid Varichukudy Village—and the properties, sued as, nanja, punja, thottam, tope, manaikat, shops etc., which belong and might belong to me in the villages of Vallampadugai, Vallathurai, Pirampattu and Silampuri—Chidambaram Taluq, Manja Kuppam (South Arcot district) English territory—I have set apart, so that, from out of the incomes which might be derived therefrom, the following things might be done.” Then follows a list of charitable objects to be performed. The will continues:—“To conduct those charities for ever without any modification the aforesaid Subbaraya shall utilize them. As I have reserved the said immovable properties only for charitable purposes, they shall remain intact for ever. Only the incomes therefrom the aforesaid Subbaraya Mudaliar and his descendants shall utilize for the said charities. As I have been personally attending to the incomes from the village as well as the expenditure, my Kariyasthars should not be asked for an account, after my death. The aforesaid charities shall be conducted by incurring expenditure according to the list of expenses to be supplied by me subsequently in connection with the said charities.”
The contention is that the words in the opening paragraph indicate that the testatrix intention was to give an absolute estate to her brother, and that the words in the concluding paragraph show that in respect of the lands specified for charity the gift was subject to the burden of performing the charities. Reliance is placed on the testatrix's direction that the expenses should be in accordance with a list to be supplied by her. No such list is forth-coming. But it is argued that the inference is that only the income up to a scale which was to be specified was expendable on the charities, and that, subject to this obligation, there was no clog on the brother's absolute right over the properties.
With regard to this argument it may be observed that in Har Narayan v. Surja Kunwari , the judicial Committee laid down this rule of construction: “In determining whether the will of a Hindu gives the testator's estate to an idol subject to a charge in favour of heirs or makes the gift to the idol a charge upon the estate”, there is no fixed rule depending on the use of particular terms in the will; the question depends upon the construction of the will as a whole”. And their Lordships point out that, on the authority of Sonatun Bysack v. Sreemutty Juggetsoondree Dossee , the circumstance that the expenditure on the charity would require only a small proportion of the income might indicate that the heirs should take the property subject to a charge for the purpose of the named religious purposes. But in the case before us there is no specific amount of income fixed for performing the charities. We cannot guess from the reference in the will to the list of expenses which the testatrix would supply that she intended only a fraction of the income from the lands to be expended for this purpose. We have to construe the will as it stands. Its meaning appears to us to be reasonably clear. The testatrix begins by giving all her movable property and the two items of immovable property specified in the schedule absolutely to her brother and then she gives “the remaining properties”, which she names, in trust for the performance of the charitable purposes set out in the will. She emphasizes her intention of making a complete dedication by saying that the said immovable properties have been reserved for charitable purposes and directing that they shall remain intact, the income only to be expended by Subbaraya on the charities.
The conclusion we come to on this part of the case is that these properties were held in trust and were inalienable except for some object which would be binding on the trust; and as it is not pretended that there was any such justification for the alienation, the plaintiff is entitled to recover possession for the trust.
The order to ascertain mesne profits in execution is not in accordance with the Code. We understand that the lower Court has since passed a final decree for mesne profits, but, if this has not been done, the lower Court must proceed to do it now.
A C. M. P. has been filed for the admission of certain documents which it was suggested ware contradictory of the alleged adoption, showing that some years afterwards the plaintiff was being referred to as Muthukumara Mudaliar's son, and 1st defendant's brother-in-law. These documents came into existence after the suit had been brought. But whatever value might be attached to them, we do not think that they would suffice to overthrow the direct evidence of the fact of the adoption.
The result is that the appeals and the C. M. P. fail and are dismissed.
On the question of costs, we think that as the plaintiff failed in his obvious duty to give evidence, which he was quite competent to give, on the matter which was the very foundation of his claim, he should not have his cost. The parties, therefore, to these appeals will bear their own costs throughout in both Courts.
N. R. R.Appeals dismissed.