Judgement Appeal (No. 87 of 1939) from a decree of the High Court (January 27, 1938) which reversed a decree of the, Court of the Subordinate Judge, Delhi (November 30, 1936), in favour of the defendant, the present appellant. The following facts are taken from the judgment of the Judicial Committee The appeal arose out of a suit instituted by the respondents, on behalf of the members of the brotherhood of the Digamber Jains, for recovery of possession from the appellant of a house described as " Jain Dharamsala," situate at Khatra Mashru, in ward 4 of the town of Delhi, and entered as No. 48 in the municipal registers. The question for decision in this appeal was whether the respondents had established their title to, and right to recover possession of, the suit property from the appellant. The parties to the suit were Jains, and were governed by the Mitakshara law. In the plaint it was alleged that the house in dispute was purchased by one Lala Janaki Das, presumably with his own funds, that he " converted it" into a Dharamsala, that it was used as such and managed by him during his lifetime, that after his death in 1909 it remained under the management of his son, Ramchand, the third respondent, till it was handed over to the Jain Orphanage Society of Delhi, that the appellant got possession of it from him in January, 1931, for temporary use during the occasion of the marriage of his daughter, and that he refused to vacate when he was asked to return it. The appellant traversed the allegations of the plaint, repudiated the dedication of the property as " Dharamsala," and pleaded as material facts that the house was owned and possessed by him. He also questioned the right of the respondents to maintain the suit. In the course of evidence the following facts were elicited one, Sri Ram, "by occupation a pleader, "resident of Delhi," executed a will on March 23, 1892. After appointing two executors, Lala Janaki Das (mentioned in the plaint) and Munshi Ramji Das, and setting out the details of his movable and immovable properties, valued at Rs.40,400, the testator expressed in para. After appointing two executors, Lala Janaki Das (mentioned in the plaint) and Munshi Ramji Das, and setting out the details of his movable and immovable properties, valued at Rs.40,400, the testator expressed in para. 1 of the will his intention of creating a trust for charity in respect of Rs.11,500 out of his properties as follows " Out of the aforesaid property "of the value of Rs.40,400, property worth Rs.11,500 .... "viz., one house situate in Khatramashru and valued at "Rs.6500 .... and Rs.5000 .... in cash be given away in " charity. That is, the money be given away in charity account "and the house under reference be made wakf. I myself "will manage the wakf house in my lifetime, and after my "death managers shall be appointed and instructions shall be "laid down for their guidance." In paras, ii. and iii. of the will the testator made provisions in favour of his wife, Mst. Durgi Devi, and Mst. Bhugli, widow of his deceased son. In para, iv., after giving a legacy to a cousin of his, he left the residue for charity in the following terms "As regards the remaining "property of the value of about Rs.12,000 (twelve thousand), "I make the following will The property which is left " unbequeathed at the time of my death be included in the "charity account." The testator did not carry out his intention of creating a charitable trust. About a week before his death, by a codicil dated April 30, 1892, he amended the disposition for charity of the residue made in para. iv. of the will as follows ".... I now .... amend "the said wording of para. No. iv. of the will .... and make "the following will about the use of the unbequeathed sum of "about Rs.12,000 The said amount of money .... To be "deposited in the charity account, on account of the land "situate at Pahar Gang. ,"... Rs.7000 (Rupees 7000)." He applied the balance of the residue in legacies to certain specified persons and for the construction of an inner hall in a named temple in the name of his deceased son. On May 7, 1892, the testator died leaving surviving him his widow Musammat Durgi, and Musummat Bhugli, the widow of his predeceased son Peari Lal, who died on February 21, 1892. On May 7, 1892, the testator died leaving surviving him his widow Musammat Durgi, and Musummat Bhugli, the widow of his predeceased son Peari Lal, who died on February 21, 1892. On November 19 the executor, Lala Janaki Das, obtained probate of the will and codicil. In 1894, while Musammat Durgi, the widow of Sri Ram, was still living, Musammat Bhugli, the widow of Peari Lal, adopted Hem Chand, the appellant, who was then said to be seven or eight years old. The factum of adoption was at first disputed by the respondents, but it was admitted before the Board. Its validity, however, had been questioned throughout. On April 3, 1907, Janaki Das purchased from one Badri Das, the house in suit. The sale deed stated that " , . . . the "vendee has purchased the property .... with the money "left by Babu Sri Ram, Vakil, deceased, for purposes of "building a Dharamsala .-....." It was common ground that the property was purchased by Lala Janaki Das out of the estate left by Babu Sri Ram. The appellant was present when the document was registered. After purchase, the house was completely renovated in 1908. The appellant stated that he "looked to the building of the house." It bore on one of its walls the inscription " Dharamsala Babu "Sri Ram, Vakil, Jaini 1909" written in Urdu and Hindi. That was known to the appellant. Lala Janaki Das died in 1909. The respondents contended that the suit property was dedicated as a " Dharamsala " by Janaki Das, that the title to it belonged to the Digambar Jain Brotherhood, that the appellants adoption by Musammat Bhugli at the time when the property vested in Musammat Durgi was invalid, that he came into possession as the house was lent to him in 1931 for temporary use on the occasion of his daughters marriage, and that he was thus liable to ejectment. They also urged that the appellant, having himself accepted and joined in the trust and allowed construction of the house in dispute out of the sale proceeds of the property at Paharganj, was estopped from denying its validity. They also urged that the appellant, having himself accepted and joined in the trust and allowed construction of the house in dispute out of the sale proceeds of the property at Paharganj, was estopped from denying its validity. On behalf of the appellant it was contended that the provisions of the will relating to the creation of the charity were vague, and therefore inoperative in law, that the money should be treated as undisposed of and held by the trustee on behalf of the author of the trust or his legal representatives, that as the will was void with regard to the gift to charity, the user of the property in dispute as a " Dharamsala " was immaterial, that his adoption was valid under the Hindu law, and that he was therefore entitled to the property as Babu Rams legal heir. It was also contended that the appellant was all along in possession of the property, and that he was not estopped from contesting the present suit. The Subordinate Judge accepted the contentions of the appellant, and dismissed the respondents suit, holding that the appellant was in possession" and could not be ousted by any person not holding a superior title. He held, further, that the house in question was used for public and charitable purposes from 1909 to 1931, and that the appellant was not estopped from contesting the validity of the trust. On appeal by the respondents, the learned judges of the High Court (Addison and Din Mohammad JJ.) held that the adoption of the appellant was invalid under Hindu law, inasmuch as the adoptive mother, Musammat Bhugli, could not by her adoption divest Musammat Durgi of the estate that she held, and that the appellants claim could not be maintained for the reasons that he was present when the property was purchased with the avowed object of building a Dharamsala, that it was with his knowledge and consent that the building was consecrated as a Dharamsala, and that during the course of more than twenty years he never asserted his title to it. They also came to the conclusion that it was for the first time in 1931 that the appellant obtained possession of the property, with the permission of the then manager. In the result, the decision of the Subordinate Judge was set aside and the respondents suit was decreed. 1942. April 22, 23, 27. They also came to the conclusion that it was for the first time in 1931 that the appellant obtained possession of the property, with the permission of the then manager. In the result, the decision of the Subordinate Judge was set aside and the respondents suit was decreed. 1942. April 22, 23, 27. Rewcastle K.C. and 5. Hyam for the appellant. The main point is that in an action for ejectment the plaintiff can only succeed, if at all, on the strength of his title, and not on the weakness or absence of title in the defendant. If that be right, this appeal must succeed and the original action must properly have failed unless one of the respondents could prove that he had title to the property himself. It is conceded that Janaki Das was not a trustee for a specific trust, and that s. 10 of the Limitation Act annot apply. At no time did Janaki Das ever claim that he had any personal right of property in any part of the estate of the deceased. He was holding it purely as executor and continued to hold it in that capacity throughout his lifetime. To dedicate part of a mass of property it must be separated from the other property and clearly dedicated. This type of dedication for a charitable use is, in Hindu law, very "much on a par with the dedication of land as public property. When a piece of land is dedicated the title to the land is retained, but a public right of passage over it is created. That would appear to be precisely what happened here. It is submitted, on the evidence, that this property was in some way so far dedicated to charity that there only arose some right on the part of a body of people to make use of it from time to time for certain purposes Mullas Principles of Hindu Law, 9th ed., p. 474, para. 407. Had there been a proper endowment the religious or charitable purposes would have been clearly specified, and the property would have been set aside for those purposes by the person making the dedication, as I understand it, the testator. The executor only had authority to act on the instructions and powers given to him by the will. 407. Had there been a proper endowment the religious or charitable purposes would have been clearly specified, and the property would have been set aside for those purposes by the person making the dedication, as I understand it, the testator. The executor only had authority to act on the instructions and powers given to him by the will. Nothing was ever done by dedication to attempt to transfer the property away from the estate to any outside person. In those circumstances, even if s. 10 of the Limitation Act does not apply, and s. 28 does, and the appellants title is gone, there is nobody holding during that period in adverse possession to him. There is nothing sufficiently definite to show who were the charity to whom the dedication was made, and if there be nothing definite for that, this action must fail, not because the appellant has any title at all, but because there has not been produced the quantum of evidence necessary in an ejectment action to enable the respondents to prove title. The property in suit has, however, since its purchase by the executor, remained part of the residue of the testators estate and as such legally devolved on his heir, the appellant. S. Hyam followed. The gift to charity here being bad, Janaki Das had no right to endow a Dharamsala, and therefore all acts done by him were ultra vires. Adverse possession was not pleaded, and cannot be decided on the record as it now stands. Mere user of the property of itself does not mean that there was a beginning of adverse possession. J. M. Parikh, for the respondents, was not called on June 24. Adverse possession was not pleaded, and cannot be decided on the record as it now stands. Mere user of the property of itself does not mean that there was a beginning of adverse possession. J. M. Parikh, for the respondents, was not called on June 24. The judgment of their Lordships was delivered by Sir Madhavan Nair, who stated the facts above set out, and continued It will be observed that important facts forming the basis of the case as presented to the lower courts for decision, namely, that Lala Janaki Das purchased the suit property from the funds of the estate of Babu Sri Ram of which he was an executor under his will, that the appellant claimed that he was adopted by the widow of Peari Lal—a claim disputed by the respondents, but important to the appellant, as he based his title to the property on it—were disclosed with connected facts only in the course of evidence, and had not been mentioned in the pleadings by either party; nor had any issues been raised regarding them. Their Lordships desire to observe that, though the case has been decided on all the points which arose on the evidence led by the parties, the procedure adopted by the trial court of allowing the parties to adduce evidence on points not raised in the pleadings or issues was irregular, and should not have been allowed without amending the pleadings and raising the necessary issues. The law is well settled that in an action of ejectment the plaintiff can recover only by the strength of his own title, and not by the weakness of that of the defendant. Mr. The law is well settled that in an action of ejectment the plaintiff can recover only by the strength of his own title, and not by the weakness of that of the defendant. Mr. Parikh, appearing for the respondents, admitted at the outset that the provision of the will relating to charity is vague, and is therefore inoperative to create a charitable trust; but he did not admit that the result of the failure of the trust is, as was held by the Subordinate Judge, that the executor must be considered as holding the undisposed of residue as trustee for the benefit of the author of the trust or his legal representative, his position being, that the resulting trust which arises when the trust fails or is void on account of vagueness or uncertainty is a trust against the deed and the property, if retained by the executor, is prima facie held by the executor adversely to the heir-at-law; and if, as in the present case, he dedicates the property to charity, the trust so created, after the expiry of twelve years adverse possession, would acquire a statutory title to it. The law is well established that where a trustee has been in possession for upwards of twelve years of property under a trust which is void under the law, an action against him by the rightful owner would be barred by limitation under the statute, the reason being that the possession of the trustee is as much adverse to the true owner as that of any trespasser. Sect. 10 of the Indian Limitation Act (IX. of 1908) says, ". . . . no suit against a person in whom property has become "vested in trust for any specific purpose, or against his legal "representatives or assigns (not being assigns for valuable "consideration), for the purpose of following in his or their "hands such property or the proceeds thereof, or for an. "account of such property or proceeds, shall be barred by "any length of time." If this section could successfully be invoked in favour of the appellant, then the respondents would be precluded from relying on the plea of adverse possession in their favour ; but Mr. "account of such property or proceeds, shall be barred by "any length of time." If this section could successfully be invoked in favour of the appellant, then the respondents would be precluded from relying on the plea of adverse possession in their favour ; but Mr. Rewcastle has frankly conceded, and in their Lordships opinion, rightly, that the appellant cannot claim the benefit of this section, as it would be impossible to hold that the property in respect of which the direction in the will is void has become "vested in trust "for a specific purpose" within its meaning. Since the provision in the will creating the charitable trust is invalid, and s. 10 of the Limitation Act is inapplicable to the case, it follows that the property is held by the executor adversely to the true owner, and if he so holds it for the statutory period he would acquire a good title to it. The learned counsel for the appellant then contended that in this case the executor has shown by his conduct that he did not hold the property for himself, that he held it in no other capacity than purely as executor under the will, that his son after his death continued to act in the same manner, and that, in any event, it has not been shown that the property was dedicated as " Dharamsala," and that Lala Janaki Das and Ramchand have been in adverse possession of it for upwards of twelve years. Neither branch of his argument can be accepted. In support of the first part, reliance was placed on the facts that it was with the proceeds of the sale of the property allotted in the will to charity and other funds of the estate that the property in dispute was bought by Lala Janaki Das, and that the house tax receipts issued by the municipality show that they were issued in favour of the testator Sri Ram, deceased. But this is no proof that the executor was not holding adversely to the heir. Adverse possession having begun in the manner indicated above, the next question is whether it has been proved that the property was dedicated and that it was held in adverse possession by Lala Janaki Das and Ramchand for the statutory period. But this is no proof that the executor was not holding adversely to the heir. Adverse possession having begun in the manner indicated above, the next question is whether it has been proved that the property was dedicated and that it was held in adverse possession by Lala Janaki Das and Ramchand for the statutory period. It may be mentioned, as argument referred to it, that the absence of a deed in this case creating the trust cannot invalidate the endowment, for " no writing is necessary "to create an endowment except where the endowment is "created by will, in which case the will must be in writing and "attested by at least two witnesses if the case is governed . "by the Indian Succession Act, s. 57." (See Principles of Hindu Law, by Mulla, 9th ed., s. 407.) As stated already, the Subordinate Judge has found specifically " that there is "sufficient material on the record to show that the house in "question has been used for public and charitable purposes "from 1909- 1931." Both courts have found that the property was dedicated as “Dharamsala." There is ample evidence to show that it was treated as dedicated property, and used as such for charitable and religious purposes till the year 1931, when the appellant came into possession. The evidence shows further, that the appellant was aware that the property was purchased with the money allotted by Babu Sri Ram for charitable purposes, that he was present when the sale was registered, that he supervised the construction of the building, and that to his knowledge the building bore the inscription " Dharamsala Babu Ram." The inference from the evidence as a whole is irresistible that it was with his knowledge and implied consent that the building was consecrated as a Dharamsala and used as such for charitable and religious purposes, and that Lala Janaki Das, and after him Ramchand, was in possession of the property till 1931. As forcibly pointed out by the High Court in considering the merits of the case "During the course of more than twenty years "that this building remained in the charge of Janaki Das, "and on his death in that of his son, Ramchand, the defendant "had never once claimed the property as his own or objected "to its being treated as dedicated property." This Board held in Gunga Gobind Mundul v. Collector of the Twenty-Four Pergunnahs (( 1867) 11 Moo, I. A. 345.) that if the owner whose property is encroached upon suffers his right to be barred by the law of limitation "the practical effect is the extinction of his title in favour of "the party in possession" (Ibid. 361,). Sect. 28 of the Limitation Act says "At the determination of the period hereby limited "to any person for instituting a suit for possession of any "property, his right to such property shall be extinguished." Lala Janaki Das and Ramchand having held the property adversely for upwards of twelve years on behalf of the charity for which it was dedicated, it follows that the title to it, acquired by prescription, has become vested in the charity and that of the appellant, if he had any, has become extinguished by operation of s. 28 of the Limitation Act. Their Lordships have no doubt that the Subordinate Judge would also have come to the conclusion that the title of the appellant has become barred by limitation had he not been of the view that Lala Janaki Das retained possession of the suit property as trustee for the benefit of the author of the trust and his legal representatives, and that presumably s. 10 of the Limitation Act would apply to the case, though he does not specifically refer to the section. For the above reasons, their Lordships hold that the respondents have established their title to the suit property by adverse possession for upwards of twelve years before the appellant obtained possession of it, and since -the suit was brought in January, 1933, within so short a time as two years of dispossession, the respondents are entitled to recover it from the appellant, whose title to hold it, if he had any, has become extinct by limitation, in whichever manner he may have obtained possession, permissively or by trespass. In the above view, the validity of the appellants adoption by Musammat Bhugli, the widow of Peari Lal, decided in his favour by the Subordinate Judge and against him by the High Court, does not arise for decision by the Board. Their Lordships will therefore humbly advise His Majesty to dismiss this appeal, with costs.