JUDGMENT Hon’ble Sudhir Agarwal, J.—This is plaintiff’s appeal under Section 100 C.P.C. As per the prevalent practice of this Court, this appeal was presented before Registrar and admitted by him on 17.8.1988 with a direction of listing appeal before Court for hearing under Order 41 Rule 11 C.P.C. on 25.8.1988. Thereafter, notice was issued to respondents on 4.2.1998. It however does not appear from record that this Court after hearing appeal under Order 41 Rule 11 C.P.C. at any point of time found that there has arisen any substantial question of law, which may give rise to an occasion to hear appeal under Order 41 Rule 13 C.P.C. It has remained pending in the process for almost one and half decade and more, but it does not appear from record that this Court made any observation at any point of time that it does/or not give rise to any substantial question of law and the same has/have not been formulated till date. 2. Be that as it may, I heard Sri P.K. Jain, learned Senior Advocate, assisted by Sri Rajesh Gupta, Advocate, for appellant and Sri Vivek Chaudhary and Sri Rahul Mishra, Advocates, for respondents on 29.4.2014 and thereafter following four substantial questions of law, which in my view have arisen in this matter and required to be adjudicated by this Court, were formulated: (i) Whether Bhagirathi Devi, by will dated 5.9.1932, created a private Trust or a public Trust or Public Charitable Trust? (ii) Whether a Trustee can delegate any of his duties without permission of Court in view of Section 46 and 47 of Indian Trusts Act, 1882 (hereinafter referred to as “Act, 1882”)? (iii) Whether Sri Har Swaroop, who accepted and entered upon the Trust in view of desire expressed by author of will dated 5.9.1932 had authority to transfer his duties and liabilities without permission of the Court? (iv) Whether Sri Har Swaroop had any authority to execute himself will dated 7.12.1937? 3. As requested by learned counsels for parties, this matter was directed to be placed on 5.5.2014, on board, for hearing under Order 41 Rule 13 C.P.C., on which date it was again directed to be placed on 6.5.2014. 4. Learned counsels for parties besides advancing their own submissions, have also filed short notes/written brief in support of their submissions. 5. As requested by learned counsels for parties, this matter was directed to be placed on 5.5.2014, on board, for hearing under Order 41 Rule 13 C.P.C., on which date it was again directed to be placed on 6.5.2014. 4. Learned counsels for parties besides advancing their own submissions, have also filed short notes/written brief in support of their submissions. 5. I have heard them at length and also perused written submissions submitted by them. 6. The dispute relates to a Trust, namely, “Bhagirathi Vedik Kanya Pathshala” which was created as a Private Charitable Trust by Smt. Bhagirathi Devi vide a registered deed dated 5.9.1932. As per the terms of trust-deed, after demolition of entire building situated at 265/266, Mohalla Maida, Lalkurti Bazar, Meerut Cantt., a Girls School building was to be constructed. Rs. 2000/- towards the expenses of such construction were kept aside by the founder of Trust. Besides, the income of Bungalow No. 241, Kali Paltan was kept apart and to be utilized for the said School, i.e., Kanya Pathshala. The founder of Trust appointed her youngest son, Lala Har Swaroop, father of Bhupendra Kumar (the plaintiff-appellant) as sole Trustee. Lala Har Swaroop got the school building constructed and School started running under the name and title “Bhagirathi Kanya Pathshala”. 7. Upto 1937, Lala Har Swaroop managed the affairs of Trust property. On 7.12.1937, he executed a document transferring management of Kanya Pathshala and the Trust to President, Arya Samaj, Lal Kurti Bazar, Meerut Cantt. He also amalgamated Kanya Pathshala with another Pathshala run by Arya Samaj, Lal Kurti Bazar, Meerut Cantt. On 20.10.1953, Lala Har Swaroop executed another deed, completely detaching himself from the management of Pathshala and Trust and left it in the hands of defendants. 8. The plaintiff alleged that in 1959 Lala Har Swaroop realized his mistake and nominated him (plaintiff) as sole Trustee. Consequently, Original Suit No. 396 of 1973 was instituted by Sri Bhupendra Kumar, son of Lala Har Swaroop seeking a declaration that plaintiff, being the sole Trustee, is entitled to run Pathshala as separate entity and manage the same and Trust property, described as Kothi No. 214, Kali Paltan, Meerut Cantt. He also sought an injunction restraining defendants from interfering with right of plaintiff as sole Trustee. 9. The suit was contested by defendants 1, 3 and 4. He also sought an injunction restraining defendants from interfering with right of plaintiff as sole Trustee. 9. The suit was contested by defendants 1, 3 and 4. They filed a common written statement denying existence of any Trust as alleged in the plaint. Defendants pleaded that Smt. Bhagirathi Devi, the grandmother of plaintiff, established a Public Charitable Trust by ‘will’ dated 5.9.1932 for the purpose of establishing a Kanya Pathshala (Girls School). It was a Public Charitable Trust for the benefit of General Public and not a Private Trust. Lala Har Swaroop was sole Trustee who got the Girls School constructed and started running it. He managed the School till 1937, and, thereafter, finding himself unable to run it efficiently, transferred management of Trust to President Arya Samaj, the defendant. 10. It was a Public Charitable Trust for the benefit of General Public and not a Private Trust. Lala Har Swaroop was sole Trustee who got the Girls School constructed and started running it. He managed the School till 1937, and, thereafter, finding himself unable to run it efficiently, transferred management of Trust to President Arya Samaj, the defendant. 10. The Trial Court framed 13 issues as under: ^^1- D;k HkkxhjFkh oSfnd dU;k ikB'kkyk ds uke rFkk izdkj ls dksbZ /kekFkZ U;kl ekStwn gS tSlk fd oknh dh vksj ls dgk tkrk gS ;fn gka rks D;k ;g /kekFkZ U;kl O;fDrxr U;kl gS tSlk fd oknh us dgk gS\ 2- D;k oknh ,d ek= U;klh gS tSlk mlds }kjk dFku gS vkSj ;g okn nk;j djus dk vfèkdkjh gS\ 3- D;k vfHkys[k 7 fnlEcj 1937 vkSj vfHkys[k fnukafdr 20 vDVwcj lu 1953 voSèk Fks vkSj fcuk fdlh vk/kkj ds Fks vkSj ;g ykxw ugha gksrs gSa\ tSlk fd oknh dk dFku gSA 4- D;k HkkxhjFkh vk;Z dU;k ikB'kkyk dh vc dksbZ vyx igpku ugha gS ;fn gka rks bldk izHkkoA 5- D;k vfHkys[k 7 fnlEcj 1937] iw.kZ lafonk gS\ ;fn gka rks bldk izHkkoA 6- D;k fMdzh ewy okn la[;k 81@59 jsLtqfMdsVk gS ;fn gka rks rc D;k ;g okn jsLtqfMdsVk ds fl)kar ls ckf/kr gS\ 7- D;k okn O;ogkj izfdz;k lafgrk vkns'k 2 fu;e 2 ds fu;eksa ds izko/kku ls ckf/kr gS tSlk fd izfroknh us dgk gS ;fn gka rks bldk izHkko\ 8- D;k okn dk ewY;kadu de fd;k x;k gS\ 9- D;k U;k; 'kqYd vi;kZIr gS\ 10- D;k okn le;kof/k ls ckf/kr gS\ 11- D;k oknh dk fookfnr lEifRr ij dCtk ugha gS\ vkSj blh dkj.k ls og uqdlku dk vuqrks"k ikus dk vf/kdkjh ugha gS vkSj ;g okn /kkjk 34 fof'k"V vuqrks"k vf/kfu;e ls ckfèkr gS tSlk fd tokc nkos esa dgk x;k gS\ 12- D;k oknh dk dFku osx ¼osx½ gS ;fn gka rks bldk izHkko\ 13- D;k vuqrks”k ;fn dksbZ gks rks oknh ikus dk vf/kdkjh gS\** “1. Whether there exists any charitable trust being Bhagirathi Vaidic Kanya Paathshaala by name and character, as averred by the plaintiff. If so, whether this charitable trust is a personal trust, as stated by the plaintiff? 2. Whether the plaintiff is a sole trustee, as claimed by him and whether he is entitled to file this suit? 3. Whether there exists any charitable trust being Bhagirathi Vaidic Kanya Paathshaala by name and character, as averred by the plaintiff. If so, whether this charitable trust is a personal trust, as stated by the plaintiff? 2. Whether the plaintiff is a sole trustee, as claimed by him and whether he is entitled to file this suit? 3. Whether the document dated 7th December, 1937 and the document dated 20th October, 1953 were illegal and without any premise and are inapplicable, as averred by the plaintiff? 4. Whether Bhagirathi Vaidic Kanya Paathshaala has no separate entity as of now? If so, its effect? 5. Whether the document dated 7th December, 1937 is a complete contract? If so, its effect? 6. Whether the decree rendered in Suit No. 81/59 constitutes res-judicata? If so, whether the suit is barred by the principle of res-judicata? 7. Whether the suit is barred by Order 2 Rule 2 of the Civil Procedure Code, as contended by the defendant? If so, its effect? 8. Whether the suit is undervalued? 9. Whether the Court fee is underpaid? 10. Whether the suit is time barred? 11. Whether the plaintiff has no possession over the disputed property and for this very reason he is not entitled to get relief in lieu of damages and whether the suit is barred by Section 34 of the Specific Relief Act, as contended in the written statement? 12. Whether the plaintiff’s statement is vague ? If so, its effect? 13. Whether the plaintiff is entitled to get relief, if there be any?”” (English Translation by the Court) 11. Issues No. 8 and 9 were tried as preliminary issues and answered in favour of plaintiff. Issue No. 6 was also answered against defendants and in favour of plaintiff holding that the Suit No. 81 of 1959 would not operate as res-judicata. Issue No. 1 and 2 were separately considered and returned against the plaintiff. Issues No. 3 and 5 were discussed together. Trial Court returned issue No. 3 in negative and issue No. 5 in affirmance, i.e., in favour of defendants. Issues No. 4 then was answered by holding that Bhagirathi Kanya Pathshala and Arya Samaj Kanya Pathshala have amalgamated and no different identity is in existence since 1937. Issues No. 7 and 10 were answered in affirmance, i.e., in favour of defendants. Issues No. 4 then was answered by holding that Bhagirathi Kanya Pathshala and Arya Samaj Kanya Pathshala have amalgamated and no different identity is in existence since 1937. Issues No. 7 and 10 were answered in affirmance, i.e., in favour of defendants. Meaning thereby, Trial Court held that suit was barred by Order 2 Rule 2 and also limitation under Article 58 of Indian Limitation Act, 1963 (hereinafter referred to as “Act, 1963”). While answering issue No. 11, Court said that plaintiff could not prove his possession and suit is barred by Section 34 of Specific Relief Act, 1963 (hereinafter referred to as “Act, 1963”). In the result, the suit was dismissed by Sri R.K. Kulshrestha Civil Judge VII, Meerut vide judgment and decree dated 10.9.1985. 12. Plaintiff-appellant preferred Civil Appeal No. 290 of 1985. Lower Appellate Court (hereinafter referred to as “LAC”) formulated 9 points for determination as under: “(1) Whether there existed any private charitable trust in the name and style of ‘Bhagirathi Vedic Kanya Pathshala? (2) Whether the deeds dated 7.12.1937 and 20.10.1953 are illegal, without authority and have no binding effect, as alleged by the plaintiff? (3) Whether the deed dated 7.12.1937 is a completed contract? (4) Whether there is no distinct entity of ‘Bhagirathi Vedic Kanya Pathshala’? If so, its effect? (5) Whether the plaintiff is the sole trustee, as alleged by him? (6) Whether the suit is barred by the provisions of Order II Rule 2 C.P.C.? (7) Whether the suit is barred by limitation? (8) Whether the suit is barred by Section 34 of the Specific Relief Act? (9) Whether the description of the property in the plaint is vague?” 13. The points No. 6 to 9 were taken together. It held that suit was not barred by Order 2 Rule 2 C.P.C. and finding of Trial Court otherwise while deciding issue No. 7 was erroneous. Again it held that no limitation was prescribed for the nature of suit in question. Accordingly, it reversed the otherwise finding recorded by Trial Court on the point of limitation and held that the suit was not barred by limitation. Similarly, it also held that suit was not barred by Section 34 of Act, 1963 and on this aspect also findings recorded by Trial Court were reversed. Lastly, it also held that description of property in the plaint cannot be said to be vague. 14. Similarly, it also held that suit was not barred by Section 34 of Act, 1963 and on this aspect also findings recorded by Trial Court were reversed. Lastly, it also held that description of property in the plaint cannot be said to be vague. 14. Then LAC proceeded to consider points No. 1 to 5, together. It held that Lala Har Swaroop had no authority to renounce his rights, and therefore, deed dated 20.10.1953 was invalid. This resulted in continuance of management rights of Sri Har Swaroop by nominating two members of Vidya Sabha in accordance with deed dated 7.12.1937. Sri Har Swaroop executed will in favour of plaintiff on 17.6.1959 in which he conferred his rights upon plaintiff with respect to institution. In that view of the matter, LAC said that petitioner is entitled to take part in the management of institution as co-Trustee and not sole Trustee of the institution. The prayer of plaintiff for reversion of Trust property was found unacceptable. In the result, the appeal was partly allowed and judgment and decree of Trial Court dismissing plaintiff’s suit for declaration was modified in the following manner vide judgment dated 28.4.1988: “The appeal is partly allowed. The judgement and decree passed by the learned Civil Judge, dismissing the plaintiff’s suit for declaration that he is the sole trustee of ‘Bhagirathi Kanya Pathshala’ and injunction to restrain the defendants from interfering in the working of the plaintiff as such, are modified to this extent that it is hereby held under the deed dated 7.12.37 executed by Sri Har Swarup and the will dated 17.6.59 executed by Sri Har Swarup, the plaintiff, being a co-trustee of the institution, is authorised to participate in the management of the Institution under the Scheme of Administration constituted in accordance with the provisions of the Intermediate Education Act and the defendants shall take necessary steps for participation of the plaintiff as such in the Committee of Management of the Institution. Both the parties shall bear their own costs of this appeal.” 15. The substantial question of law No. 1, formulated above, in fact relates to the construction of document dated 5.9.1932. The original document dated 5.9.1932 is in Urdu but its Hindi translation has been provided. It is repeatedly mentioned therein that the document is an instrument of ‘will’ executed by Smt. Bhagirathi Devi. The substantial question of law No. 1, formulated above, in fact relates to the construction of document dated 5.9.1932. The original document dated 5.9.1932 is in Urdu but its Hindi translation has been provided. It is repeatedly mentioned therein that the document is an instrument of ‘will’ executed by Smt. Bhagirathi Devi. The intention of author of document is basically crystallized in 4 items as under: ^^nQk 1- ;g fd tc rd eqfdjk ftUnk gS ml oDr rd gjnks dksBh dh ekfyd gS vkSj mudh fuLcr eq>dks tqeyk v[r;kjkr ekfydkuk gkfly gksaxsA nQk 2- ;g fd vxj eSa ftUnk jgh rks viuh g;kr esa dU;k ikB'kkyk rkehj djk nwaxh ojuk ckn oQkr esjs eq0 2000 :i;s yxkdj eqlEeh gjLo:i filj eqfdjk dU;k ikB'kkyk rkehj djk nsxk vkSj mlds dk;e j[kus ds okLrs vkenuh dksBh uEcj 214 etdwjly lnj mlesa lQZ gqvk djsxh vkSj mldk bUrtke esjk filj eqlEeh gjLo:i djsxkA nQk 3— ;g fd dksBh uEcj 29 okds Nkouh eFkqjk etdwjk ckyk dh ekfyd rUgk esjh nq[rj eqlEekr paUnzorh gksxh vkSj mldks ekfydkuk v[r;kjkr gjfdLe gkfly gksaxsA nQk 4- ;g fd fdlh filj ;k nq[rj dks esjh olh;r dh fuLcr dksbZ ,rjkt djus dk gd gkfly u gksxk fygktk ;g olh;r ukek fy[k fn;k fd lun gks vkSj dke vkosA Qdr 1 gnwnvjck dksBh uEcj 29 okds Nkouh eFkqjk ftldh eqlEekr pUnzorh ekfyd gksxh& 'kjdh caxyk uEcj 28 feyfd;r eqjyh/kjA xjch&njoktk o lM-d iq[rk ljdkjh tuwch caxyk ua0 3 feyfd;r ljdkj cgknqjA ‘kqekyh dksBh uEcj 30 feyfd;r lj bUnj flagA gnwnvjck dksBh uEcj 214 okds dksBh iyVu dSEi esjB ftldh vkenuh dU;k ikB'kkyk esa lQZ gqvk djsxh fQjhgksYM ‘kjdh caxyk [kka lkgc gkfQt Qlhgmn~nhu ejgwe xjch caxyk uEcj 211 feyfd;r ykyk gjLo:iA tuwch vOokc caxyk gktk o lM+d iq[rk ljdkjh 'kqekyh vgkrk caxyk ua 211 feyfd;r ykyk gjLo:i gnwnvjck nqdku ce; edku uEcj 295 o 296 egdq:y lnj fQjhgksYM ftlesa dU;k ikB’kkyk cusxh 'kjdh njoktk nqdku gktk o lM+d iq[rk ljdkjh xjch njoktk edku gktk o tehu ljdkjh tuwch njoktk edku gktk o xyh vkenksjQr 'kqekyh nqdku I;kjsyky ljkZQA^^ “Para 1. That as long as I, the lady executant, am alive; shall remain owner of the Hardo Kothi and shall have full rights of ownership in connection with it. Para 2. That as long as I, the lady executant, am alive; shall remain owner of the Hardo Kothi and shall have full rights of ownership in connection with it. Para 2. That if I remain alive, I shall get Kanya Paathshaala constructed during my lifetime; or else, after my death, my son, namely, Harswaroop shall get the Kanya Paathshaala constructed by spending my money to the tune of Rs. 2,000/-; and for its maintenance, the income coming from the aforesaid Kothi No. 214 shall be utilized, and the burden of managing it shall lie with my son, namely, Harswaroop. Para 3. That my daughther Chandrawati shall be the sole owner of aforesaid Kothi No. 29 located at Mathura Cantt. and shall have rights of ownership in all respects. Para 4. That none of my sons or daughters shall have right to raise objections on my will; hence, this will is written so that the same may stand to serve as a certificate if there arises any need. Ms.Chandrawati shall be the owner of Kothi No. 29 situated at Mathura Cantt. and bounded on the east by bungalow No. 28 owned by Murlidhar, on the west by the doorway and the public concrete road, on the south by bungalow No. 3 owned by Sarkar Bahadur, and on the north by Kothi No. 30 owned by Sir Inder Singh. Kothi No. 214 situated at Kothi Paltan Camp, Meerut, income wherefrom shall be invested for Kanya Paathshaala is freehold and bounded on the east by bungalow of Khan Sahib i.e. Late Hafiz Fasihuddin, on the west by bungalow No. 211 owned by Lala Harswaroop, on the south by the aforesaid bungalow and public concrete road, and on the north by the compound of bungalow No. 211 owned by Lala Harswaroop. Kanya Paathshaala shall be constructed at the shop inclusive of aforesaid freehold house Nos. 295 and 296 bounded on the east by the doorway of the aforesaid shop and public concrete road, on the west by the doorway of the aforesaid house and public land, on the south by doorway of the aforesaid house and the street for ingress and egress, and on the north by the shop of Pyare Lal Sarraf.” (English Translation by the Court)” 16. It cannot be doubted that a Trust can be created by ‘will’ also as is evident from Section 6 of Act, 1882 which reads as under: “6. Creation of trust.—Subject to the provisions of Section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.” 17. The document dated 5.9.1932 provided for construction of a Girls School at the premises of House No. 265/266 for which Rs. 2000/- were made available by author of the document. She also said that in case she is not able to get the Girls School constructed in her lifetime, it shall be got done by her son Lala Har Swaroop and for maintaining the said School, income of Kothi No. 214 shall be utilized. The management shall be in the hands of Sri Har Swaroop. The premises of House No. 265/266, thus, was assigned to the Girls School and the income of Kothi No. 214 was assigned to the said Girls School for management. The Act,1882, however, will be applicable only when it is held that the document dated 5.9.1932 constituted a “Private Trust” not of the nature of religious and charitable endowment. The Trust has been defined in Section 3 of Act, 1882 as an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. 18. In terms of Section 3 of Act, 1882, the document in question constituting ‘Trust’ will render Smt. Bhagirathi Devi as Author of Trust and Sri Har Swaroop as Trustee. The public, i.e., the Girls Students are beneficiary. The building and income of building is the trust property and the proceed money. The right of public to have a Girls School maintained by Trustee is the beneficial interest or the interest of the beneficiaries. 19. From the above nature, it is evident that the ‘Trust’ constituted by the Author of the Trust was in the nature of Public Charitable Trust. The right of public to have a Girls School maintained by Trustee is the beneficial interest or the interest of the beneficiaries. 19. From the above nature, it is evident that the ‘Trust’ constituted by the Author of the Trust was in the nature of Public Charitable Trust. The distinction between “Private Trust” and “Public Trust” depends upon the character of person for whose benefit the Trust is created. One of the difference between a “Private Trust” and “Public Trust” is that in the former, beneficiaries are defined and ascertained individuals, who, within a definite time, can be definitely ascertained, but, in the latter, the beneficial interest must be vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it, answering particular description. 20. In “Law on Trust”, Fifteenth Edition, page 15 and 16, it has been observed: “By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expression. In private trusts beneficial interest is vested absolutely in one or more individuals who are, or within certain time may be, definitely ascertained.” 21. In the present case, it has also come on record that Sri Har Swaroop, father of plaintiff, instituted Original Suit No. 81 of 1959. In para 4 of the plaint, he mentioned that the above Trust was a “Public Trust”. The plaint is Ex.-A6. It mention that under the ‘will’, the lady created a Charitable and Public Trust. The aforesaid document shows an admission on the part of sole Trustee, appointed by Author of the Trust, that the Trust in question was a Charitable Public Trust. The plaintiff claiming his right deriving from Sri Har Swaroop cannot take a different stand. The admission is best evidence. I have no hesitation in holding that the Trust in question constituted by Author of the trust is a Public Charitable Trust. Question No. 1 is answered accordingly. 22. Once it is held that the Trust in question is a “Public Charitable Trust”, Act, 1882 would have no application to the Trust in question. Therefore, reliance on Section 46 and 47 of the said Act would be wholly erroneous. Question No. 1 is answered accordingly. 22. Once it is held that the Trust in question is a “Public Charitable Trust”, Act, 1882 would have no application to the Trust in question. Therefore, reliance on Section 46 and 47 of the said Act would be wholly erroneous. Question No. 2 is answered accordingly holding that Act, 1882 has no application to the Trust in question, therefore, would not attract Section 46 and 47. It is accordingly answered against the plaintiff-appellant. 23. Now coming to the Question No. 3, from the instrument of Trust, I find that for maintenance of Trust, Sri Har Swaroop was assigned duty but whether he can further assign it to anyone else or what shall be the position after Har Swaroop has not been very clearly stated in the said document. Neither the document in question confer any power upon Sri Har Swaroop to appoint another Trustee in his place nor there is any authority given to him to nominate any one. The common law of the land, therefore, applicable to such cases would be attracted and the appointment of a new Trustee can be made with the permission of the Court. The Question No. 3 is answered accordingly. 24. Now coming to the Question No. 4, I find that despite the fact that Sri Har Swaroop did possess no power either to transfer or assign his duties to any one else or to appoint any other Trustee on his own, but the fact remains that he did it by instrument dated 7.12.1937 and management and Trust property was actually handed over/given to defendants. House No. 265/266 on which Girls School was constructed itself was a Trust Property. For the purpose of Management, Income of House No. 214 was assigned and not the ownership of the said house. Meaning thereby, the ownership of House No. 214 continued initially with Smt. Bhagirathi Devi and thereafter succeeded by her legal heirs which would include plaintiff also. The plaintiff can be said to be a co-owner of House No. 214, income whereof is to be utilized for maintaining Girls School, but ownership of the said house having not been transferred to Trust, it would have continued with Author of Trust and thereafter with her legal heirs. 25. The plaintiff can be said to be a co-owner of House No. 214, income whereof is to be utilized for maintaining Girls School, but ownership of the said house having not been transferred to Trust, it would have continued with Author of Trust and thereafter with her legal heirs. 25. A similar controversy came up for consideration before Judicial Commissioner, Oudh in Sri Dhar (defendant) v. Mahant Dharam Das (plaintiff) The Oudh Cases Vol. XII 236. One Mohan Das, a Ramanadi Bairagi, built a house at Ayodhya for Puja purposes and took to the worship of God Narsinghji. Several disciples and followers gathered around it which included one Raja Tikait Rai, the Diwan of Asaf-ud-dowlah. The said Diwan obtained from Asaf-ud-dowlah, the Nawab of Oudh a revenue free grant of 393 bigha pukka of banjar land situated in certain villages to enable Mohan Das to meet the expenses of Asthan, i.e., the place of worship. Mohan Das brought the land under cultivation. After his death, his disciple Hari Das succeeded him who was further succeeded by Ajodhya Das and Ram Das in turn. At the time of Ram Das a Wajib-ul-arz was prepared relating to income of property and repair of temples and house which was built for the purpose of worship. When Oudh was taken over by British Government, entire property in Ayodhya was confiscated to the Crown. In respect to property covered by Wajib-ul-arz, after inquiry under the orders of Chief Commissioner dated 25.6.1862, Lieutenant Governor granted the sanction so as to give the property as muafi in perpetuity to Ram Das Mahant conditionally on the income being spent on puja. In para 4 the entry in relation to the rights of transfer by inheritance it was mentioned that in respect to the mahal in question, no Representative has a right to transfer by sale or mortgage. The Representative shall spend the income in Bal bhog. The Court said that the grant was for up-keep and maintenance of the Asthan and temple attached thereto and the grantee had no power to transfer the property. Mahant Dharam Das succeeded Ram Das. On 8.3.1904, he executed a document called Tamliknama in favour of Bidyadhar, brother of defendant-appellant Sri Dhar. The name of Bidyadhar got entered in Government record. 26. Mahant Dharam Das succeeded Ram Das. On 8.3.1904, he executed a document called Tamliknama in favour of Bidyadhar, brother of defendant-appellant Sri Dhar. The name of Bidyadhar got entered in Government record. 26. The Trial Court held that plaintiff was only a Truest and not head of Muth and had no power to make any permanent transfer of property or of the duties attached to his Office and the deed (Tamliknana) was null and void-ab-initio. 27. The Court of Judicial Commissioner in appeal held that Mahant had no power to sell or mortgage the property which was available conditionally on the income being devoted to puja. A Trustee has a power like a Manager and a guardian of infant and not that of an owner. A Trustee also has no power himself to create a new Trust in respect to Trust property and such a deed is void-ab-initio. The Court applied the principle of Delegatus non potest delegare, i.e. one cannot delegate his Office or duties to a stranger. He has no power to transfer his Trust to another person and for that purpose the Court relied on Section 47 of Act, 1882. 28. I need not go into the provisions of the Act but even general principles in this regard, in my view, are the same, but in the present case, the plaintiff has not challenged the document of 1937 at all, therefore, the aforesaid judgment, in my view, would not help the plaintiff-appellant in any manner. 29. Even otherwise, the said document cannot be construed so as to confer ownership rights upon the defendants and, therefore, Court below has rightly considered that only management and for that purpose possession of Trust property was given to defendants but they cannot claim any ownership over the property in dispute. The various judgments cited by the parties either relate to the matters where the Act, 1882 was applicable or where Trustee did not exercise power properly and that action itself was challenged within time, which is not the case in hand. Therefore, all these authorities have no application to the case in hand. 30. The various judgments cited by the parties either relate to the matters where the Act, 1882 was applicable or where Trustee did not exercise power properly and that action itself was challenged within time, which is not the case in hand. Therefore, all these authorities have no application to the case in hand. 30. As already said above, since the ownership was not actually transferred, and, could not have been transferred by Trustee in respect to Trust property to the defendants, the rights of ownership continued to remain vested with the author of Trust and, thereafter with his legal heirs with regard to the management and possession which was handed over to the defendant by Sri Har Swaroop, the then Trustee vide document of 1937, as already said. The document of 1937 has not been challenged by which Management and possession of Trust property was given by Sri Har Swaroop to the defendants. This has not been challenged and restoration of possession of Trust property was also not claimed within the period of limitation. Therefore, plaintiff on the basis of suit having been filed in 1973, cannot claim any benefit thereof. Therefore, I am in entire agreement with LAC that the deed dated 7.12.1937 cannot be ignored and has to be given effect as it is. Question No. 4, therefore, is answered accordingly. 31. In view of above, the appeal lacks merits. Dismissed. ———————