A trustee acting in a public capacity and not for his own benefit cannot be estopped from suing to recover trust property wrongfully alienated.

Spencer, J.

1. The point of law argued in this second appeal is whether the trustee of a temple who himself mortgaged land which was afterwards sold in court auction at the instance of the mortgagee, can sue on behalf of the temple to recover the landlords interest, which was dedicated to the temple by the trustees father, or whether, he is estopped from setting up a claim against a bona fide purchaser for value that it is trust property. The District Munsif found that he was estopped and dismissed the suit. The Subordinate Judge in appeal reversed the District Muusifs decree and gave the plaintiff a decree for possession of the melvaram interest.

2. Estoppel in pais creates a personal disability attaching to an individual and his representative of denying the truth of a thing which he has led others by his acts or representations to believe to be true.

3. If a trustee alienates trust property for his own purposes he acts not as trustee but in breach or repudiation of his trust. Therefore, as Telang, J., in Sri Ganesh Dharmidahr Mahraj Dev v. Keshavrav Govind Kulgavakar (1890) I.L.R. 15 Bom. 625 points out, the estoppel arising out of the conduct of the mortgagor in representing the trust property to be his own property works, not against succeeding trustees, but against the heirs of the alienor in his personal capacity. In Syed Gulam Nabi Sahib v. Nagammal (1896) 6 M.L.J 270 it was recognised that the right of suing for the recovery of possession of trust property wrongfully alienated was not confined to succeeding trustees but might be exercised by the same trustee who made the alienation in order to set right the wrong done to the trust.

4. That a man may act in one capacity when he makes a representation that a village is his private property and in another capacity when he claims as trustee to recover the village as trust property of the idol is well illustrated by Subbiah Chetty v. Mandleswar Katari (1908) 19 M.L.J. 305. I think that we should follow that decision and pronounce against the plea of estoppel in this case. As regards the decision in Mahamaya Debi v. Haridar Haldar (1914) I.L.R. 42 Cal. 455 it seems to me that if a legal custom is found to exist whereby a shebait may transfer his turn of worship, the act of mortgaging his turn is not an act done by virtue of his trusteeship but one which he does in exercise of his private right of worship. In that way estoppel may arise in such cases, although it is noticeable that Beachcroft, J., who sat with Mookerjee, J., preferred to preserve his opinion on the question of estoppel and to base his decision on the existence of a valid custom of transferability.

5. At page 468 Mookerjee, J., first lays down the principle that a mortgagor cannot set up against his mortgagee the title of another person. He then extends this even to a case where the mortgagor is a trustee, acting in a public capacity and not for his own benefit, and he quotes an English decision as an authority for this proposition Deo v. Horne Q.B. 760 at 766. The learned judge in the next step proceeds on the strength of some American decisions to apply the same principle to cases where the trustee mortgages the trust property which he has no right to mortgage. With due respect I am not prepared on the strength of American authorities to follow him in the application of estoppel to cases where the trustee acts to the prejudice of the trust, especially after the recent warning expressed by the Judicial Committee of the Privy Council against the danger of Courts in India allowing themselves to be guided by the ruling of foreign Courts. The appeal fails and is dismissed with costs.

Krishnan, J.

6. The only question raised in this second appeal is one of estoppel and it is raised on the following facts by the lower Appellate Court.

7. The plaint land originally belonged to plaintiffs father Sellam Bhattar. He dedicated the melvaram right in it to the Ekambaranatha Swami Idol in the Big Conjeevaram Temple for th