K.L. Manjunath, J.
1. The property of erstwhile his Highness Maharaja of Mysore, is the subject-matter of these two appeals. R.S.A. No. 840 of 1999 is filed by the defendant 2. R.S.A. No. 488 of 1999 is filed by the purchasers from the appellant in R.S.A. No. 840 of 1999, who have purchased the property during the pendency of the appeal before the lower Appellate Court.
2. One N.V. Mahadevappa filed a suit in O.S. No. 43 of 1974 on the file of Civil Judge, Mysore against Shri Yuvaraja Srikantadatta Narasimharaja Wodeyar Trust, represented by its Secretary, H.N. Palegar, Secretary of Mysore Palace Trust, Mysore, contending that the suit property originally belonged to Shri Yuvaraja Srikantadatta Narasimharaja Wodeyar's Trust, Mysore and that he had taken the premises on lease on a monthly rent of Rs. 175- and has been in possession of the same by paying the monthly rent very regularly throughout. It is further averred that the defendant Shri Yuvaraja Srikantadatta Narasimharaja Wodeyar Trust had negotiated to sell the plaint schedule property to one Dr. G.V. Venkata Setty and that Dr. G.V. Venkata Setty had even purchased the stamp paper in the name of the Trust for execution of a sale deed in his favour. Subsequently on a representation made by the plaintiff, the Trust as well as Dr. G.V. Venkata Setty agreed to sell the plaint schedule property to him for a sum of Rs. 48,000/- as he had been in possession of the property for more than 12 years as a tenant and that a sum of Rs. 20,000/- was paid by him on 23-3-1971 and that the balance consideration of Rs. 28,000/- was paid on 17-4-1971 in or the office of the Mysore Palace Trust and obtained the receipts. According to him, he also paid a sum of Rs. 2,7507- to Dr. G.V. Venkata Setty towards the value of the stamp paper. It is further averred that the plaintiff after obtaining the stamp paper from Dr, G.V. Venkata Setty, handed over the same to the defendant-Trust for execution of a sale deed in favour of the plaintiff for a sum of Rs. 48,000/- and that the defendant had to incorporate the terms of sale on the stamp paper; and to be registered in accordance with law. Though the plaintiff delivered the requisite stamp paper to the trust for execution of the sale deed and he was ready to meet all expenses towards registration of the sale deed, in spite of several repeated requests the defendant went on postponing the registration. Finally, on 19-7-1971 the defendant got the said sale deed typed on the stamp paper and addressed a letter to the Sub-Registrar, Chamarajanagar, stating that the plaint schedule property is sold to the plaintiff under a deed of sale dated 25-7-1971 and requested the Sub-Registrar to register the deed. Though such a letter was addressed to the Sub-Registrar, the defendant did not deliver the document for registration. Therefore, he filed the suit for specific performance of the contract to direct the defendant to execute the sale deed in favour of the plaintiff for a sum of Rs. 48,000/-.
3. H.N. Palegar, the Secretary of the defendant filed a preliminary written statement. According to him, the Trust was created for the benefit of Yuvaraja of Mysore, till he attained the age of 21. As per the terms of the trust deed on attaining the age of 21 the Trust properties were handed over to him on 17-6-1974 and from 17-6-1974 the Trust has ceased to exist and that there is no legal entity to figure the trust as a party. He further, contended that the Secretary of the Trust has lost all the locus standi to function in the suit. Therefore, Palegar requested the Court to pass an appropriate order. After filing the preliminary written statement by the Secretary of the defendant, the plaintiff filed an application to implead Yuvaraja Sri Srikantadatta Narasimharaja Wodeyar as the 2nd defendant. The said application came to be allowed. Though the 2nd defendant was impleaded, the plaintiff did not choose to amend the plaint averments. Thereafter, the 1st defendant-Trust filed a detailed written statement contending that the 1st defendant-Trust is not in existence and has come to an end; on 2nd defendant attaining the age of 21 years and that the Trust properties were also handed over to the 2nd defendant on 17-6-1974 and the suit filed against the 1st defendant as not maintainable. The 1st defendant also contended that the suit against a non-existing person as not maintainable. The 1st defendant also contended that the Trust can only be represented by all Trustees and not by a Secretary and Palegar was not a Trustee of the 1st defendant-Trust. Without prejudice to the aforesaid contentions, the 1st defendant also contended that the entire property was not agreed to be sold and that the transaction was not concluded or final or unconditional or legally valid and not enforceable. It was further contended that the 1st defendant-Trust had agreed to sell some of the properties near the suit property to others and plaintiff had promised to give up all his tenancy claim in respect of the part of the suit property agreed to be sold in favour of others. Pursuant to the plaintiffs promise he gave an acknowledgment to that effect. Since, plaintiff intended to play a double game; to knock off the entire property he filed O.S. No. 43 of 1974 on the file of Civil Judge, Mysore against the purchasers of the adjacent property as well as the 1st defendant-Trust. Therefore, it was contended due to his fraudulent and dishonest act, plaintiff is not entitled to claim the equitable relief. It is also contended that the plaintiff has not claimed for refund of the money and that the relief sought for by the plaintiff as not maintainable.
4. The 2nd defendant filed a detailed written statement. According to him, as on the date of institution of the suit, he had attained the age of 21 years and therefore the suit instituted against the Trust alone was not maintainable. In other words, a suit was instituted initially against a non-existing person and such a defect cannot be cured by way of an amendment and therefore he contended the suit filed by the plaintiff as void ab initio. He further contended that the 1st defendant-Trust has not been properly represented and the 1st defendant has to be treated as a non-existent party and that the Trust cannot be represented in a suit by its Secretary and all the Trustees were necessary parties to the suit. Reiterating the other grounds urged in the written statement of the 1st defendant, the 2nd defendant further contended that the plaintiff must prove the transaction. According to him, even if it is true or valid, the agreement is not binding on him as the same was not beneficial to him. Therefore, he requested the Court to dismiss the suit as barred by limitation also.
5. A reply was also filed by the plaintiff to the written statement filed by the defendants. In paras 2 and 3 of the reply statement, the plaintiff states as hereunder:
'2. It is really surprising that the defendants have neither answered any of the interrogatories nor they have produced the document which is in their custody and evaded to even mention where the original of the said Trust deed is. In the circumstances, the plaintiff is not in any way in a better position after a period of very nearly three years to file and reply statement.
3. Inasmuch as the defendants have refused to produce the original trust deed, this Hon'ble Court may kindly order that the cost of getting up the Trust deed or a copy of the same must paid by the defendants and that they must be made responsible for all the costs'.
6. According to plaintiff, the defendants neither answered any of the interrogatories nor produced the documents which were in their custody and evaded to mention where the original Trust deed is available and he also requested the Court to make available a copy of the Trust deed on payment to him and traversing several allegations made in the written statement, he requested the Court to decree the suit.
7. Based on the above pleadings, the Trial Court framed the following issues:
1. Whether this suit was validly filed against the Yuvaraja Srikantadatta Narasimharaja Wodeyar Trust and whether it can be validly continued against the second defendant?
2. Whether the suit as framed is maintainable against the first defendant and whether it can be continued against him after the Yuvaraja Trust had ceased to exist?
3. Whether the suit as framed discloses valid cause of action against the second defendant?
4. Does plaintiff prove that the lease pleaded in plaint para 1 is true and valid and binding on the 2nd defendant?
5. Whether the plaintiff proves the agreement to sell in respect of the suit property described in the Schedule and the payment of consideration thereunder?
6. Whether the plaintiff further proves the terms as agreed between the parties for the execution of the sale deed and the registration and the failure on his part of the contract of sale mentioned in paras 9 and 10 of the plaint?
7. Whether the suit against the defendant 2 is in time?
8. Whether the plaintiff proves his readiness and willingness to perform his part of the contract of sale? Whether Yuvaraja Trust is not legally impleaded as such? If so whether the trustees of the said Trust are necessary parties and the suit is bad for non-joinder of such parties?
9. Whether the agreement to sell is not enforceable in law?
10. Whether the contract of the plaintiff, subsequent to the agreement in not fulfilling the principle conditions referred to in para 4 of the written statement, disentitles the plaintiff to the relief of specific performance?
11. Whether the plaintiff is not entitled to specific performance on account of non-withdrawal of the suit O.S. No. 41 of 1974?
12. Whether the plaintiff is entitled to the specific performance sought?
13. Whether the defendants prove that the plaintiff is liable to pay compensation under Section 35(a), C.P.C.?
14. Whether the plaintiff is entitled to the cost and current interests?
15. To what reliefs are the parties entitled?
8, Upon framing of the above issues, the plaintiff was examined as P.W. 1. He also examined Dr. Venkata Setty as P.W. 2. The plaintiff relied upon Exs. P. 1 to P. 10. On behalf of the defendants, one Alasingachar was examined as D.W. 1. The defendants relied upon Exs. D. 1 and D, 2. After completion of evidence, at the time of arguments, the Trial Court felt that the issues framed were required to be recasted and refrained. Accordingly, issues framed by the Trial Court were recasted and fresh issues were framed as hereunder:
(1) Whether the plaintiff proves the suit agreement and payment of consideration?
(2) Whether the suit is maintainable?
(3) Whether the plaintiff is entitled to specific performance?
The Trial Court after appreciating the oral and documentary evidence adduced by the parties held issue 1 in favour of the plaintiff, issues 2 and 3 against the plaintiff and ultimately the plaintiff's suit was dismissed.
9. Being aggrieved by the judgment and decree of the Trial Court, the plaintiff filed an appeal before this Court in R.F.A. No. 22 of 1980. Subsequently, the matter was transferred to the District Judge, Mysore and renumbered as R.A. No. 46 of 1989. During the pendency of the appeal, the appellants in R.S.A. No. 488 of 1999 filed an application to come on record, on the ground that they have purchased the suit property. Accordingly, the said applications were allowed and Nanjundaswamy, Sibagatulla and Basavarajaiah were brought on record as respondents 3 to 5. Subsequently, the plaintiff filed an application under Order 6, Rule 17 of the CPC requesting the lower Appellate Court to permit him to amend the plaint and also the prayer portion. Similarly, he also filed an application under Order 41, Rule 27 and another application under Order 16, Rule 6 requesting the Court to permit him to lead additional evidence and to summon certain documents from the custody of defendants. The application filed under Order 41, Rule 27 and Order 16, Rule 6 were dismissed by the lower Appellate Court. However, the application filed under Order 6, Rule 17 of the CPC was allowed-in-part thereby permitted the plaintiff to amend only the prayer portion of alternative relief of refund of Rs. 48,000/- with interest. The appeal was also heard on merits by the lower Appellate Court. The lower Appellate Court formulated the following points for its consideration:
1. Whether the suit as brought is maintainable against defendants 1 and 2?
2. Whether plaintiff is entitled to seek for execution and registration of the sale deed in respect of the suit property? If so, by whom?
3. Whether defendants 1 and 2 are bound to execute the sale deed or whether they are estopped from denying their liability of executing a sale deed?
4. Whether plaintiff is entitled to a decree of specific performance?
5. Whether the judgment and decree under appeal is liable to be interfered with? If so, to what relief the parties are entitled?
10. The lower Appellate Court after considering the evidence adduced by the parties held that; the defendants did not explain as to why 2nd defendant did not step into the witness-box. Therefore, by drawing an adverse inference held that the plaintiff has proved his case and that the defendants have failed to prove that there was a reciprocal promise and that the plaintiff is not entitled to seek the relief of specific performance as the defendants has failed to prove the averments in regard to reciprocal promise. On the ground, the 2nd defendant did not enter into the witness-box and did not produce the resolution book, and by drawing an adverse inference granted the decree by holding that the plaintiff was in possession of the property under Section 53A of the Transfer of Property Act and even if the sale deeds are executed by the 2nd defendant in favour of the appellants in R.S.A. No. 488 of 1999 they are hit by the principles of lispendence, allowed the appeal and set aside the judgment and decree directed the 2nd defendant to execute the sale deed and also directed the respondents 3 to 5 to join with the 2nd defendant in execution of the sale deed.
11. Being aggrieved by the said judgment and decree of the lower Appellate Court, R.S.A. No. 840 of 1999 is filed by the 2nd defendant. R.S.A. No. 488 of 1999 is filed by the subsequent purchasers who are respondents 3 to 5 before the lower Appellate Court.
12. These two appeals are admitted by this Court by framing the following substantial question of law:
'Whether a Trust property can be agreed to be sold by its employees without there being a decision or a resolution of all the Trustees?'
13. The appellants in both the appeals have urged several other grounds at the time of hearing. The learned Counsel for the appellant in R.S.A. No. 840 of 1999 also raised a substantial question of law in regard to the rights of a de facto guardian to alienate a minor's property. This question was not raised at the time of admission. Whether the substantial question of law now raised by the learned Counsel for the appellant in R.S.A. No. 840 of 1999 has to be considered or not will also be dealt separately.
14. Sri Tarakaram, learned Senior Counsel appearing for the respondents relying upon Sub-section (5) of Section 100 of the CPC contends that no substantial question of law will arise for consideration of the appeals and based on the above provision of law, he requests this Court to hold that in these two appeals there are no substantial question of law arises for consideration.
15. In this background, this Court has to consider whether the substantial question of law raised by the appellant at the time of admission and the substantial question of law canvassed at the time of hearing of this appeal have to be considered by this Court or not.
16. It is not in dispute his Highness the Maharaja of Mysore, Sri Jayachamaraja Wodeyar as a settlor, settled certain properties for the benefit of his minor son Yuvaraja Srikantadatta Narasimharaja Wodeyar. The said registered deed of Trust has come into effect from 18th April, 1955. The following persons were appointed as Trustees: (1) Sri Jayachamaraja Wodeyar, (2) Sir Mirza Mohamed Ismail, (3) N. Madava Rao, (4) V.P. Menon and (5) S.A. Lal as Trustees. The Trust deed provides for appointment of a Secretary. The Trust deed empowers the Trustees to manage all the properties for the benefit of the beneficiary. As per the terms of the deed, the Trust shall come to an end immediately after Yuvaraja attaining the age of 21 years. After completion of 21 years the Trust properties shall have to be handed over to the beneficiary and Trust will become defunct thereafter. As per Clause 8 of the deed, the Trustees are at liberty to sell and transfer the Trust properties including the movable and immovable either by public auction or private contract and on such terms and conditions as the Trustees think fit with liberty to the Trustees to buy in rescind or vary any contract for sale, transfer assignment, lease or other disposition. From this it is clear the Trustees are empowered to alienate the property either by public auction or private contract and on such terms and conditions as the Trustees think fit. Clause 14 of the deed empowers the Trustees to appoint the Secretaries, Treasures or Supervisor or Remuneration for the maintenance of the Trust. From the above clause, it is clear that the Trustees have power to appoint Secretary and they have to exercise the powers of their own by passing resolutions.
17. In the instant case as per the pleadings of the plaintiff, the plaintiff agreed to purchase the suit property from Shri Yuvaraja Srikantadatta Narasimharaja Wodeyar Trust and he has relied upon certain documents in his evidence. According to P.W. 1, he has paid a sum of Rs. 20,000/- as per Ex. P. 1 issued by H.N. Palegar as Secretary of the Mysore Palace Trust. Ex. P. 2 is the receipt issued on behalf of Secretary of Mysore Palace Trust on 17-4-1971 for having received the balance sale consideration of Rs. 28,000/-. Ex. P. 4 is a letter addressed by Palegar as Secretary of Mysore Palace Trust to the Sub-Registrar, Chamarajanagar requesting him to register the sale deed in favour of Mahadevappa (plaintiff) on 25-7-1971. Ex. P. 10 is a Notice issued by the plaintiff through his Lawyer to Sri H.N. Palegar, Secretary, Mysore Palace Trust. As per Ex. P. 10 the plaintiff appears to have agreed to purchase the suit property from the Mysore Palace Trust for Rs. 48,000/-. But, contrary to Exs. P. 1, P. 2, P. 4 and P. 10 for the first time the plaintiff in the plaintiff has stated that the suit property belong to the 1st defendant-Trust property and that the defendant-Trust had agreed to sell the property in his favour. The plaintiff in his evidence has categorically stated that the Maharaja of Mysore had created a Trust called the 1st defendant-Trust and H.N. Palegar was the Secretary of the same. According to him, the defendant-Trust agreed to sell the property to Dr. Venkata Setty and that he requested Dr. Venkata Setty and Palegar to sell the same in his favour and thereafter Palegar received a sum of Rs. 20,000/- from him and remaining Rs. 28,000/- was paid as per Ex. P. 2 to the Head Clerk of Mysore Palace Trust. In the cross-examination, he has categorically admitted that he had not given any application to the defendant-Trust offering to purchase the suit property. He is also not aware whether there was any resolution of the Trust to sell the property to him and that he has not seen the Trust deed. According to him, Palegar was a Trustee and he admits that he has not seen any document authorising the Palegar to sell any suit property on behalf of the Trust. He further admits that he had seen the sale deed written in the name of Dr. Venkata Setty. But, he does not know whether the said sale deed was executed by the Trustee. He further admits no meeting of Trust was called at that time. From this evidence, it is clear that there is no resolution on behalf of defendant-Trust to sell the property to the plaintiff and even the plaintiff does not know whether Palegar was a Trustee of the defendant-Trust. P.W. 2-Dr. Venkata Setty admits that the suit property belong to defendant-Trust and that there was some reciprocal arrangement in agreeing to sell the property in favour of the plaintiff. During the pendency of the case, the plaintiff had made an application as I.A. 3 under Order 11, Rule 14 of the CPC calling upon the defendants to produce the sale deed dated 23-3-1971 prepared by the 1st defendant in favour of the plaintiff and the letter addressed by the plaintiff to the defendant and reply telegram dated 13-9-1971 and the Advocate's notice dated 14-10-1971. Though he requested the defendant's to produce these documents, the plaintiff never requested the defendant's to produce the resolution book of the Trust. According to D.W. 1 the Trust had not agreed to sell the property in favour of the plaintiff. If the plaintiff had called upon the defendant's to produce the resolution book of the 1st defendant-Trust and in that resolution book if there were to be any entry in regard to all the Trustees agreeing to sell the suit property in favour of the plaintiff, the matter would have been different. When the plaintiff has called upon the defendant to produce all other documents except the resolution book, this Court has to infer that the plaintiff did not request the defendant to produce the resolution book of the Trust as it was well-within his knowledge that no such resolution was passed by the Trustees agreeing to sell the property in favour of the plaintiff.
18. The learned Counsels for the respondents contends that the defendants did not raise the plea of maintainability of the suit contending that the Trustees had not agreed to sell the property and that there were no issue framed by the Trial Court on the said question. In para 6 of the judgment of the Trial Court an issue was framed by the Trial Court in regard to enforceability of the agreement in question as issue 9. But, subsequently the issues were recasted and fresh issues were framed after hearing the arguments. A specific issue is also framed by the Trial Court in regard to the maintainability of the suit as issue 2. The parties have also let-in evidence treating the suit property as a Trust property and Trust deed is also produced before the Court as Ex. D. 2. The plaintiff admits that there was no resolution passed by the Trustees to alienate the property in favour of the plaintiff. Exs. P. 1, P. 2, P. 4 and P. 10 reveal that the said documents are signed far and on behalf of the Secretary of the Mysore Palace Trust and not on behalf of the 1st defendant-Trust. In the cross-examination of P.W. 1, the plaintiff has admitted that he does not know who are all Trustees of the 1st defendant and when the plaintiff has instituted the suit against the defendant-Trust through its Secretary as H.N. Palegar cannot later on contend that Palegar was also a Trustee.. From the above discussion, it is clear that the parties having understood the pleadings and let-in evidence contending that suit property as a Trust property. The Trial Court has dismissed the suit of the plaintiff, on the ground that Palegar was incompetent to transfer the suit property without any written instrument or resolution of the Trustees. The Trial Court has also assigned reasons to come to its conclusion in paras 13 and 14 of its judgment. The lower Appellate Court only on the ground that Palegar was not examined as a witness and defendant 2 did not step into the witness-box and that D.W. 1 was only an Head Clerk of the Palace and that he was not the Power of Attorney Holder of defendants 1 and 2 has discarded his evidence and held that the 1st defendant-Trust had agreed to sell the property for a sum of Rs. 48,000/-. The lower Appellate Court has also drawn an adverse inference against the defendant in not producing the resolution book to substantiate their contention. While coming to such a conclusion, the lower Appellate Court has failed to notice that it is the plaintiff who approached for the relief and the burden of proving the case was on him and not on the defendants. When the 2nd defendant has contended that the 1st defendant-Trust has no right to alienate his property and it was for the plaintiff to prove that the Trustees acting in terms of the Trust deed had agreed to sell the property in his favour by passing a resolution and for the benefit of the 2nd defendant. The powers of the Trustees cannot be delegated to a Secretary without there being anything in writing. As I pointed out earlier, H.N. Palegar has signed Exs. P. 1 and P. 4 as Secretary of Mysore Palace Trust and not as Secretary of the 1st defendant-Trust. Ex. P. 2 is receipt of Secretary of Mysore Palace Trust and therefore these documents are of no assistance to hold that the Trustees of the 1st defendant-Trust have agreed to sell the property in favour of the plaintiff and this Court has to hold that the plaintiff has failed to prove that the defendant-Trust had agreed to sell the property and that he can enforce the agreement or the receipts said to have been executed either as the Secretary of Mysore Palace Trust or an employee of the Mysore Palace Trust.
19. In this background, the learned Counsels appearing for both the parties have relied upon certain judgment's to substantiate their case.
20. The learned Counsel appearing for the appellant has placed reliance on a judgment of the Supreme Court in Janakirama Iyer and Ors. v. P.M. Nilakanta Iyer and Ors., : AIR1962SC633 Head Note (d):
'(d) Trust Act (1882), Sections 48 and 34 -- Co-trustees -- Joint execution -- Trust 'otherwise provides' -- Co-trustees -- Discretion in Trust deed to trustees to act according to unanimous or majority decisions -- Construction--Clause held did not provide for exception to Section 48 -- Conveyance of Trust property -- All trustees not joining in execution -- Conveyance invalid and passed no title to alienees'.
Relying upon this judgment, he contends that in the instant case, the Trustees have not agreed to sell the property in favour of the plaintiff. Therefore, the act of Palegar does not bind either the 1st defendant or the 2nd defendant. Placing reliance on the judgment of the Supreme Court in H.E.H. The Nizam's Jewellery Trust, Shanti Vijaya and Company and Ors. v. Princess Fatima Fouzia and Ors., AIR 1980 SC 17 : (1979)4 SCC 602 contends that no Trustee can delegate performance of acts relating to the sale to co-trustees -- Head Notes (A) and (B). Relying upon the judgment of Privy Council in Lala Man Mohan Das v. Janki Prasadand Ors. contends that even one of trustees cannot act alone when other trustees are there--Head Note (a). He further contends that when H.N. Palegar had no title to convey to the plaintiff. Relying upon the judgment T. Ramachandraiah v. G. Nagappa Naidu, 1995(2) Kar. L.J. 315 contends when the title of the vendor is imperfect or where there is a bar to alienate, the plaintiff can claim only an alternative relief of damages.
21. Per contra, Sri Tarakaram, learned Senior council for the respondent has placed reliance on the following judgments:
Spiro v. Lintern and Ors., 1973(3) AER 319 Head Note (d)--Estoppel. Relying upon this judgment he contends that there is an estoppel against the 1st defendant as H.N. Palegar represented to the plaintiff that he has powers to alienate the property had received the full consideration of Rs. 48,000/- and the same has been kept into the account of the 1st defendant-Trust. Therefore, the defendants cannot contend that the defendant 1 had not agreed to alienate the property. He has also placed reliance on the judgment in TCB Limited v. Gray. 1986(1) AER 587 This is also a case for estoppel. Similarly, Freeman and Lockyer v. Buckhurst Park Properties (Mangal) Limited and Anr. 1964(1) AER 630. Relying upon these decisions, he contends that the 1st defendant cannot contend-that there was no resolution passed by the Trust.
22. But, I am not in a position to follow the decisions relied upon by the learned Counsel for the respondent considering the facts of the present case as there cannot be any estoppel against a statute when the Trust Act provides how a Trust property has to be dealt by the Trustees. Even if Palegar as Secretary of the Trust has agreed to sell the property of the 1st defendant-Trust, I am of the opinion that the act of Palegar cannot bind the Trustees who are not parties to the contract. In the first place, there is no agreement entered into between the plaintiff and the Trust. The documents relied upon by the plaintiff are executed for and on behalf of the Mysore Palace Trust and not on behalf of the 1st defendant-Trust. Even the persons who have issued the receipts in favour of the plaintiff were to be the employees of the 1st defendant who were working as employees of the Mysore Palace Trust as well as 1st defendant-Trust, the plaintiff cannot rely upon the said judgments, as any act of the employees of the 1st defendant cannot bind the Trustees and consequently it has to be held that it will not bind the 2nd defendant who was the beneficiary of the Trust.
23. Accordingly, it has to be held that the act of employees of 1st defendant cannot bind the Trustees and based on such documents no Court can grant a decree for specific performance against the Trust in utter violation of the terms and conditions of the Trust deed--Ex. D. 2 and Indian Trust Act, 1882.
24. As pointed out earlier, during the course of argument, the learned Counsel appearing for the appellant in R.S.A. No. 840 of 1999 has raised one more substantial question of law in regard to property and right of a de facto guardian to alienate the minor's property. According to him, the Trust was created for the benefit of the 2nd defendant and the properties of the 2nd defendant were under the care and custody of the Trustees. Even though he had attained the age of majority as on the date of payment as per Exs. P. 1 and P. 2, he had no control over the property in view of the terms and conditions till he attained the age of 21 years. Palegar cannot be considered as a de facto guardian and he was not a de jure guardian. His Highness the Maharaja of Mysore was alive on the date of Exs. P. 1 and P. 2. He should be considered as a legal guardian as he was the natural father. If Trustees had executed an agreement, this Court can appreciate the contention of the plaintiff, but Palegar as the Secretary of the 1st defendant-Trust, has no power to enter into an agreement or to alienate the property of the 2nd defendant or the Trust property. The learned Counsel has placed reliance on the judgment of the Supreme Court in Madhegowda (dead) by LRs v. Ankegowda (dead) by L.Rs and Ors. : AIR2002SC215 Head Note A. In the aforesaid suit, the elder sister of Sakamma had alienated the property in order to perform the marriage of Sakamma. The Hon'ble Supreme Court has held that the elder sister of Sakamma had no right to alienate her minor sister's share even for the legal necessity and held that the act of de facto guardian as void agreement.
25. But, in the instant case, the documents are executed not even by de facto guardian, but it is by an employee. Therefore, there is no necessity for this Court to consider the point urged by the learned Counsel for the appellant as the same will not arise for consideration of this Court. By holding that the act of Palegar and Alasingachar receiving the sale consideration from the plaintiff does not bind either the 1st defendant or the 2nd defendant, this Court has to see whether the plaintiff is entitled for refund of consideration paid by him to the employees of the 1st or the 2nd defendant. As pointed out earlier, when the suit was filed before the Trial Court, the alternate prayer for refund of amount was not sought for by the plaintiff. However, by way of amendment, the plaintiff before the lower Appellate Court requested the Court to consider the alternate prayer in the event of his main prayer was not considered.
26. It is not in dispute that a sum of Rs. 48,000/- is paid by him. According to Exs. P. 1 and P. 2 the said amounts are received on behalf of Mysore Palace Trust as on the date after the institution of the suit and after the death of his Highness Jayachamaraja Wodeyar and the 2nd defendant has succeeded to the estate of his Highness including the Mysore Palace Trust. It has come in the evidence of D.W. 1 that the amount of Rs. 48,000/- has been received by the Trust and accounted for the benefit of the 2nd defendant. When such being the case, this Court is of the opinion that the defendant 2 in his capacity both as beneficiary of the 1st defendant-Trust and as a successor of the Mysore Palace Trust is bound to refund the sale consideration of Rs. 48,000/-paid by the plaintiff.
27. In the circumstances, it has to be held that the lower Appellate Court has committed an error in not following the legal principles and further committed an error in holding that the act of a Secretary binds the Trustees and beneficiary. Therefore, the judgment and decree of the lower Appellate Court are required to be set aside by holding that the plaintiff is entitled for refund of sale consideration of Rs. 48,000/-.
28. In view of my finding in R.S.A. No. 840 of 1999, this Court is of the opinion that there is no necessity for the Court to consider the case pleaded by the appellants in R.S.A. No. 488 of 1999 as they are the purchasers from the appellant in this appeal.
29. In the result, R.S.A. No. 840 of 1999 is allowed. The judgment and decree passed by the lower Appellate Court in R.A. No. 46 of 1989 by the I Additional District Judge, Mysore, dated 15th April, 1999 are hereby set aside by holding that the plaintiff is entitled for a sum of Rs. 48,000/- from the 2nd defendant with interest at 6% per annum from the date of suit till the date of realisation.
30. R.S.A. No. 488 of 1999 is disposed of as docs not arise for consideration.