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1941 DIGILAW 94 (ALL)

Shyam Sundar Das v. Gowri Nath Seth

1941-09-25

BRAUND

body1941
JUDGMENT Braund, J. - This revision raises an old point. The suit was by a plain iff against one B. Shyam Sundardas, who, I think, was described in the plaint as being the manager of a particular Dharam-shala. 2. The cause of action was a contract for the purchase of a motor pump. The Plaintiff alleged that the Defendant had ordered a pump from him, that it had been delivered to him and that he was liable for the payment of its price. These facts were found against the Defendant and a decree was passed for payment by the Defendant of Rs. 425. 3. Now the Defendant comes to the Court and says that the decree should not have been against him personally but should have been either against the trust estate (whatever that may mean) or against him as manager of the trust estate. This is an old confusion. It would take too long to go into it fully in this judgment, but I have dealt with it fully in the case of Mahanth Singh v.U. Aye. (1936) 14 Rang. 336: A.I. R 1936 Rang. 514 No decree is possible except against a person either actual or juridical. When it comes to enforcing execution, it is possible that in certain cases, other considerations may apply. The Small Cause Court Judge was perfectly right in passing his decree against the Defendant personally. 4. It was however, unnecessary for him to have added the words who will be entitled to re-imburse himself for this sum from the trust property. 5. It is quite true that a trustee who has entered into a contract in execution of, and in accordance with his powers under his trust has by law a right of indemnity against the trust property. That is the ordinary law of the land and it was, of course, quite unnecessary for the learned Judge to have said it in the decree. Not only was it unnecessary but it was improper, because it has to be remembered that it always remains open to the beneficiaries of the trust to say that this particular contract was not one which the trustee ought to have entered into. In other words, the learned Judge purported to decide that the trustee was entitled to his indemnity as against the beneficiaries without having the latter before the Court or any issue on that behalf. In other words, the learned Judge purported to decide that the trustee was entitled to his indemnity as against the beneficiaries without having the latter before the Court or any issue on that behalf. That, of course, he could not do. He should have contended himself with a simple decree for Rs. 425 odd with costs and interest against the Defendant. There will be that slight alteration in the decree, but with that exception the revision will be dismissed with costs. The question whether the Trustee is entitled to an indemnity from the Trust Estate in respect of the sum decreed and the costs is one which, as between himself and the Estate, remains entirely open.