TMI Blog1962 (3) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... tituting himself the trustee of the trust. The 5th defendant claimed ₹ 20,000 and ₹ 1019 as value of improvements and extensions made on the building. A large number of issues were framed by the trial court and it passed a decree of which the most important part was as follows:- (a) The plaintiff is allowed to recover possession of A B schedule items from the defendants in possession and to utilise the income from the B schedule item according to the terms mentioned in Exhibit II. (b) The 5th 10th defendants are permitted to remove within a period of 2 months from today the constructions and additions made in the (A and B schedule items by them without causing any damage to the plaint properties. Again this decree three appeals were filed one by the appellant, the other by the 10th defendant and the third by the plaintiff-respondent. The High Court in appeal modified the decree of the trial court and held that the only claim which the appellant could put forward was for compensation for the structure he had erected. The amount of Compensation was R.46,686-2-0. The High Court also held that the respondent was entitled to recover mesne profit,% as against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this offer he stated that the estimated expenditure of the Dew building will be about ₹ 30,000 and that he would meet the expenses and then he stated:- I shall entrust this building with the company as my trust property in accordance with the conditions mentioned below, and the company shall take over the above trust property and manage the affairs in accordance with three conditions mentioned below . One of the conditions was that the minimum income of the property shall be calculated at ₹ 1500/- per annum which would be spent for the education of poor students according to the rules framed by the company and then he set out certain rules. He also stated what the name of the trust would be. The document ended as follows. I shall execute at my own expense a trust deed and sign and give the same to the company, entering therein, all the above mentioned particulars and conditions. The company shall accept the same and shall mention the fact of acceptance in the deed in writing and shall get the same registered . On the same day the directors seem to have resolved as follows:- It is decided to accept this trust property in accordance with the conditions, mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction which had been filed by some of the members was dismissed for default on March 25, 1946. The respondent company on August 13, 1945, called upon the appellant to band over the building to the respondent company and it is stated that on August 22, 1945, during some holidays the appellant inducted the 5th defendant as a tenant. The respondent thereupon filed the suit out of which this appeal has arisen. The plaintiff in his plaint, after reciting the facts which have been above set out, stated that the appellant as an agent of the respondent company had misconducted himself by the breach of his duties and had thereby lost any right he had regarding the building described in schedule B; that he had wilfully contravened the terms of his offer ; that the right of the appellant therefore was only to recover the money from the company to the extent to which he may be entitled in equity and the trust deed (Exhibit X) was inoperative. The respondent further stated that it was ready and willing to pay such sum of money as the court may find the appellant to be entitled to. The defence of the appellant was that the offer of the appellant to construct the building and to constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act should have been applied. In Ground No. 10 it was stated that ₹ 88/- was a reasonable compensation. Grounds 11 to 13 dealt with the question of trust. Thus it is for the first time in his grounds of appeal that s. 60 of the Act was sought to be raised as an alternative plea. At the time of the argument before the High Court the appellant abandoned his case in regard to the lease and relied on the irrevocability of the license and insisted that the trust deed (Exhibit X) was a valid document. Now it is not open to a party to change his case at the appellate stage because at the most the case of the appellant in the trial court was what was contained in paragraph II of the Written Statement where the question of estoppel was raised and the plea taken was that the respondent company was estopped from claiming any right to the building after accepting the offer of the appellant pursuant to which the appellant had expended a large amount of money, That was not a plea of license at that stage. it is not for us to say what the ease of the parties would have been if the case of license had been specifically raised but the fact remains that the plea of license was not raised in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the building and hand it over to the respondent company as trust property of which the trustees would be the Directors of the company. The transaction therefore was confined to the offer as contained in Exhibit AB and in Exhibit 11. It is true that for some reason or another certain members of the company were not prepared to stick to the original arrangement and wanted certain modifications but in spite of that it was not open to the appellant to ignore his offer altogether and create a wholly new trust which he has done. His right, if any, if they could be enforced would only be in Exhibit 11 which the appellant himself has abandoned. He cannot now be heard to say that because the company after accepting his offer had refused to abide by the agreement, he was entitled, to appropriate by means of the trust created by him the land in schedule A by constituting the trust a tenant and deprive the company of which he was at that time a Director and therefore a trustee. In these circumstances it is impossible to say that there were any equities in his favour which he is entitled to. enforce by way of defence to the suit of the respondent. In our opinion no case of license really a ..... 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