Delhi High Court
Ranjan Kumar Singh & Anr. vs Angoori Singh & Ors. on 11 March, 2010
Author: Manmohan Singh
Bench: Manmohan Singh
.* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 3213/2009 and I.A. No. 3240/2009 in
CS (OS) No. 2615/2008
Ranjan Kumar Singh & Anr. ...Plaintiffs
Through : Mr. Arun Jaitley, Sr. Adv., Mr. A.S.
Chandhiok, Sr. Adv. and Mr. K.
Venugopal, Sr. Adv. with Mr.
Prasanth V.G., Ms. Shuchi Jain
and Ms. Supriya Mahajan, Advs.
Versus
Angoori Singh & Ors. ...Defendants
Through : Mr. Mukul Rohtagi, Sr. Adv.
with Mr. Rohit Alex, Adv. for D-1
Mr. S.C. Aggarwal, Sr. Adv. with
Mr. Sandeep Mittal, Adv. for D-2
Decided on : March 11, 2010
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. The two applications under consideration are I.A. No. 3213/2009 filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) on behalf of defendant nos. 2 and 3 for rejection of the plaint and I.A. No. 3240/2009 filed by the plaintiffs under Section 151 of the CPC for replacing defendant no. 1 as the Trustee of the properties which are subject matter of the present suit CS (OS) No.2615/2008 Page 1 of 28 (contained in Schedules „A‟ and „B‟) by appointing an appropriate person as Trustee pending the final disposal of the suit.
2. The brief facts leading up to the filing of the two applications are that plaintiff no. 1 and defendant no. 2 are the sons of Late Sh. Narendra Singh Singhi and plaintiff no. 2 and defendant no. 3 are their respective wives. Defendant no. 1 is the mother of plaintiff no. 1 and defendant no. 2 and the wife of Late Sh. Narendra Singh Singhi.
3. Late Sh. Narendra Singh Singhi passed away on 23.12.1967. By way of a Will dated 8.6.1966 Late Sh. Narendra Singh Singhi bequeathed his immoveable property at 48/2 Gariahat Road, Ballygunge, Kolkata to his four daughters, all of whom have not been made party to the present suit as they have no right, title or interest in the properties disputed herein.
4. By the concerned Will dated 8th June, 1966, late Shri Narender Singh Singhi bequeathed to his wife Smt. Angoori Devi, Defendant No. 2 on trust to divide among his two sons and their respective wives.
5. The properties to be divided between the plaintiff no. 1 and defendant no. 2, hereinafter referred to as the „suit properties‟, comprise the following :
(a) Jewellery items as listed in Schedule „A‟ of the plaint, under the names of plaintiff no. 2 and defendant no. 3;
and,
(b) Curios and antiques listed in Schedule „B‟ of the plaint. CS (OS) No.2615/2008 Page 2 of 28
6. The terms of the Will with respect to the suit properties are as follows :
"3. I bequeath my jewellery on trust to my wife to divide the same in two parts of equal share as far as possible; One such part to be given to the wife of my son Anjan Kumar and the other to the wife of my son Ranjan Kumar after their respective marriages.
4. I bequeath my entire collection of curios antiques on trust to my wife to distribute the same amongst my sons in equal share at such time and in such manner as she thinks proper."
7. The Will of Late Sh. Narendra Singh Singhi was probated on 12.3.1970 by the High Court of Calcutta. During the probate proceedings, defendant no. 1 undertook to administer the suit properties, to make a full inventory thereof and to exhibit the same in the High Court of Calcutta within six months from the date of grant of probate as well as to render a true account of the status of the credit etc. of the deceased within one year. For all practical purposes as well as by virtue of creation of specific trust in her name in the Will, defendant no. 1 became the Trustee of the suit properties contained in the Will.
8. As per the plaint, an oral partition took place between the parties as regards the jewellery contained in the suit properties as per which it was divided between plaintiff no. 2 and defendant no. 3, however, the same was not given effect to in so far as defendant no. 1 did not hand over physical possession of the items of jewellery contained in Schedule „A‟ to the respective parties.
9. It is contended in the plaint that the jewellery items in Schedule „A‟ to the plaint that are lying at Delhi at the residence of CS (OS) No.2615/2008 Page 3 of 28 Defendant No. 1, are shown in Schedule „C‟ to the plaint. The remaining items if jewellery in Schedule „A‟ are located at the family house at Calcutta where Defendants No. 2 and 3 reside.
10. The case of the plaintiffs is that after the grant of probate in 1970, the Defendant No. 1 has not discharged her obligation as a trustee with respect to distribution of equal share between plaintiff No. 1 and Defendant No. 2 as regards the curios and antiques listed in Schedule „B‟ and a portion of the suit property was brought by Defendant No. 1 to Delhi when she permanently shifted to Delhi in the year 1995. The items lying at the Delhi residence of Defendant No. 1 and at the residence of plaintiff No. 1 are shown in Schedule „D‟ to the plaint. It is contended that the remaining antique and curios in Schedule „B‟ are located at the family house at Calcutta where the Defendants No. 2 & 3 reside.
11. The defendant no. 1 is an aged lady of about 93 years of age who might now be incapable of properly discharging the duties she is obligated to perform. Thus the present suit was filed for a mandatory injunction directing defendant no. 1 to perform her obligations as the Trustee of the suit properties and in the alternative, to appoint a retired High Court Judge in place of defendant no. 1 as the Trustee of the suit properties, to carry out all the duties and actions purported to be carried out by the Trustee of the Will.
12. By letter dated 21.7.2008 written by defendant No.1 to the plaintiff No.1 and defendant No.2, defendant no. 1 expressed her desire CS (OS) No.2615/2008 Page 4 of 28 to discharge her duties as a Trustee and to distribute the suit properties in terms of the Will when on 29.9.2008 the plaintiffs along with their children were present at the venue of the meeting called by defendant No.1. It became a futile exercise since defendant Nos.2 and 3 did not attend the meeting and as such the family meeting failed and no partition/distribution of the suit properties could take place.
13. Thereafter the defendant No.1 wrote a letter dated 3.10.2008 conveying that she would be unable to act as a Trustee due to her old age and due to the inter se fighting amongst the families of plaintiff No.1 and defendant No.2. Under the said circumstances, she has clearly lost her authority and command to prevail over the unwilling co-defendants and to have effective distribution done as per the terms of the Trust created by the Will and due to these circumstances, another trustee in place of defendant No.1 ought be appointed due to the bad health and unwillingness of the defendant No.1 to perform her duties.
14. The suit along with the interim application was listed before Court on 16.12.2008 when in the interim application under Order XXXIX Rule 1 and 2 CPC the Court passed an order directing the parties to maintain status quo with regard to possession of items mentioned in Schedule A to D annexed with the plaint and also appointed two Local Commissioners in I.A. No.15450/2008 being Ms. Anju Bhattacharya, Advocate to visit the premises of defendant Nos.2 and 3 situated at 48/3, Gariahat, Ballygunge, Calcutta and to make an inventory of items as given in Schedules A and B to the plaint and Mr. CS (OS) No.2615/2008 Page 5 of 28 Amit Sethi to visit the premises of defendant No.1 situated at Second Floor, 4, Munirka Marg, Vasant Vihar, New Delhi and at the plaintiff‟s residence at 18, Kapashera Estate, New Delhi to make an inventory of the goods detailed in Schedules C and D which are in their power and possession.
15. The other application being I.A. No.15861/2008 was filed and was listed on 22.12.2008 in which the plaintiffs sought police assistance to execute the order dated 16.12.2008 on ground of non cooperation by defendant Nos. 2 and 3 at Calcutta. The said application was considered by the Court and police assistance was granted to the Local Commissioner to comply with the orders dated 16.12.2008. It was also directed that one representative of the plaintiffs would be entitled to accompany the Local Commissioner. Both the Local Commissioners have already filed their respective reports.
16. Upon service, the defendants filed an application under Order VII Rule 11 and Order XXXIX Rule 4 CPC for rejection of the plaint for want of jurisdiction of this court and for vacation of the ex parte order respectively and other pleadings in the main suit and remaining applications. However, the defendant nos. 2 and 3 have argued and pressed their application for rejection of plaint being IA No. 3213/2009.
17. It is contended that this court has no jurisdiction to try and entertain the present suit. The suit is also barred by law and is not maintainable. It is stated in the application that what transpired in the Probate proceedings was that the Testator had not only bequeathed the CS (OS) No.2615/2008 Page 6 of 28 moveable properties which are subject matter of the instant suit but also several other immoveable properties. Some of the immoveable properties which are at Calcutta have already been distributed amongst the beneficiaries, namely, the co-daughters of the Testator and distribution of other immoveable properties, namely, the ones situated at District of Malda in West Bengal is yet to be effected. All these properties are contended to be beyond the jurisdiction of this Court and within the jurisdiction of the Calcutta Courts, further a major part of the moveable properties in respect of which the suit has been filed are also situated within the jurisdiction of the courts at Calcutta. The plaintiffs have deliberately and willfully suppressed the non distribution of immoveable properties in order to invoke the jurisdiction of this Court and the same has been done by the plaintiffs with the active aid and collusion of defendant no. 1 who is within the control of the plaintiff.
18. It is also stated in the application that by the Deed of Declaration dated 31.3.1969 executed before the Notary Public at Calcutta, the executrix who is defendant no. 1 in the present suit in consonance with the Will of the Testator divided and physically parted with the possession of half of the jewellery to defendant no. 3. The executrix by another declaration dated 31.3.1975 made before the Special Judicial Magistrate at Sealdah, Calcutta also distributed and physically handed over the possession of the other half of the jewellery to plaintiff no.2. The plaintiffs have suppressed the above said facts from this Court.
CS (OS) No.2615/2008 Page 7 of 28
19. In reply to this application it is averred that defendant No.1 is a Trustee while the plaintiffs and defendant nos. 2 and 3 are the beneficiaries of the Trust created under the Will of late Narender Singh Singhi. The relationships are distinct from the relationship of executrix and legatees under the Will. It is stated that the present suit has been filed by the plaintiffs to ensure discharge of the executrix‟s obligation under the Indian Trust Act, 1882. It is argued by the plaintiffs that the jurisdiction of the probate court is only confined to examination of genuineness of the Will but in the present case the suit involves disputed questions of fact that could never be adjudicated in the probate jurisdiction. It is also argued that defendant No.1 resides within the jurisdiction of this Court and the cause of action largely has arisen within the jurisdiction of this Court.
20. It is also alleged that in terms of Section 10 of the Limitation Act, 1963 that there cannot be a bar of limitation when defendant No.1 as a trustee is sued in respect of the Trust. The defendant no. 1 in the written statement has not denied the jurisdiction of this Court.
21. I have heard learned counsel for the parties. In order to decide an application under Order VII Rule 11 the court has to confine itself solely to the averments made in the plaint and the court should not consider the averments made as defences in the written statement and/or in any other pleading by the defendants. At the time of deciding the application the Court cannot examine the correctness of the contents of the plaint at all.
CS (OS) No.2615/2008 Page 8 of 28
22. It is not denied by the defendants that the present suit has been filed by the plaintiffs for mandatory injunction and in the alternative for appointment of a Trustee against the defendants including defendant No.1 who is to perform her obligations as a trustee with regard to the suit properties which are moveable in nature. The defendant nos. 2 and 3 have also not denied the fact that the plaintiffs and defendant no. 1 are residing in Delhi and part of the properties are lying with defendant no. 1 and plaintiff no. 1 even as per the report of the Local Commissioner. The said defendants have admitted in their pleadings that a portion of the properties is still to be divided by the defendant no. 1. From the facts stated in the plaint, this Court agrees with the plaintiffs that the defendant no. 1 in her capacity as Trustee is apparently distinct from her capacity as an executrix, therefore the suit filed by the plaintiffs is not prima facie barred by limitation.
23. The plaintiffs have invoked the jurisdiction of this court in view of Para 21 of the plaint which reads as under:-
"Defendant No.1 resides within the territorial jurisdiction of this court. The chain of events leading to the proposed family meeting on September 29, 2008 which fell, took place within the territorial jurisdiction of Delhi. A part of suit scheduled property is in possession of defendant No.1 in her Delhi residence, thus, this court has the territorial jurisdiction over the matter."
24. In order to decide as to whether the cause of action or any part of the cause of action has arisen within the jusrisdiction of this Court, it is not in dispute and even the parties were at ad idem while considering the Order VII Rule 11 application and at this stage the Court CS (OS) No.2615/2008 Page 9 of 28 cannot go into the defence of the defendants/ written statement or the documents filed by them. At this stage, as per settled law, the plaint alone is to be seen.
25. In the case reported as Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express,(2006) 3 SCC 100 the Supreme Court, with regard to the scope of an application under Order VII Rule 11 observed as under :
"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."
26. In the case of Om Prakash Srivastava Vs. Union of India & Ors, 131(2006) DLT 557 (SC), the Supreme Court has laid down the principles to determine as to what constitutes a cause of action as under:-
"9. By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in CS (OS) No.2615/2008 Page 10 of 28 order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors., (1994)6SCC322 ).
In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998CriLJ4066 ).
10. It is settled law that "cause of action" consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. (See South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. and Ors.,[1996]3SCR405 ).
11. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary, to prove each fact. comprises in "cause of action". (See Rajasthan High Court Advocates' Association v. Union of India and Ors., 2001 (2) SCC 294.)
12. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh, [1977]2SCR250 ). CS (OS) No.2615/2008 Page 11 of 28
13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors., AIR2000SC2966)."
27. It is settled law that the plaintiff is a dominus litus i.e. master of or having dominian over the case. He has the right to have a „forum conveniens‟ by approaching the court where part of cause of action arises. His actions must be directed towards such a forum unless approaching the said forum is opposed to public policy or will be an abuse of the process of law. The plaintiff has every right to choose the forum best suited to him. No doubt, the plaintiff during the trial has to prove that the court has territorial jurisdiction after producing evidence in this regard. At this stage in the present matter, prima facie it cannot be said that this court lacks the inherent jurisdiction to entertain the suit.
28. Considering the averments made in the plaint and the facts and circumstances of the present case, prima facie it appears that there is no force in the contentions of the defendant nos. 2 and 3 and this Court has the territorial jurisdiction to entertain and try the suit. In any case, as per averment made in the plaint, it appears that a part of the cause of CS (OS) No.2615/2008 Page 12 of 28 action has definitely arisen within the jurisdiction of this Court. IA No. 3213/2009 is therefore disposed of as rejected.
29. In the second application being IA No.3240/2009 filed by the plaintiff under Section 151 CPC it is stated that in view of the facts stated in the plaint, the defendant No.1 has to perform her obligations as the Trustee of the suit properties i.e. the items of jewellery listed in Schedule A to the plaint and curios and antiques listed in Schedule B to the plaint. Alternatively, prayer has been made for appointment of a retired High Court Judge as a trustee in place of defendant No.1 to discharge her duties of trustee in terms of the Will of late Sh. Narendra Singh Singhi.
30. It is contended in the application that the Defendant No.1 has not discharged her obligation as a trustee with respect to distributing the curios and antiques in accordance with the terms of the Will and portion of the said property was brought by defendant No.1 to Delhi when she permanently shifted to Delhi in the year 1995. The items lying at the Delhi residence of the Defendant No.1 and at the residence of Plaintiff No.1 are shown in Schedule D of the plaint and have been inventorised by Mr. Amit Sethi, Local Commissioner appointed by this Court vide order dated 16.12.2008. Since Defendants No.2 & 3 did not attend the meeting called by the Defendant No.1 despite of issuance of letters, no partition/distribution of the said property could take place and it seems that due to her advanced age and failing health, defendant No.1 has lost her authority and command to prevail over the unwilling Defendants CS (OS) No.2615/2008 Page 13 of 28 No.2 & 3 and to have any effective distribution done. Therefore, prayer has been made in the application for appointment of another trustee in place of Defendant No.1. It is also mentioned in the application that despite of the second visit of the Local Commissioner at Calcutta at the residence of Defendants No.2 & 3, the Local Commissioner did not find several invaluable items which were to be at the joint family home which were left by the defendant no. 1 thereat when she moved to Delhi in 1995 and many items were not traceable during the visit of the Local Commissioner.
31. No reply to this application has been filed by the Defendant No.1. The application is only opposed by Defendants No.2 & 3 inter alia on the following grounds:
(a) That the present suit has been filed by the Plaintiffs admittedly for appointment of a trustee in place of Defendant No.1.
(b) The suit itself is not maintainable as the subject matter of the suit is a Will which has been probated under the Succession Act, 1925.
(c) The present suit has been filed with mala fide intention by the Plaintiffs in order to harass the Defendants No.2 & 3 and to enrich themselves with those properties which were handed over to the Defendants No.2 & 3 as their half share of the estate of late Sh. Narendra Singh Singhi.
(d) The only remedy that lies with the Plaintiffs is to approach the High Court at Calcutta which has granted the probate even if CS (OS) No.2615/2008 Page 14 of 28 the Defendant No.1 intends to discharge her duty in view of the Will which has already been probated on 12.03,1970. It is contended that as per order dated 12.03.1970 passed by the High Court at Calcutta in the probate proceeding the Defendant No.1 was required to make an inventory of the properties within six weeks from the date of grant of probate and render true accounts of the property and credits of late Sh.
Narendra Singh Singhi within one year. The Defendants No.2 & 3 have denied that any oral partition of the jewellery effected between Plaintiff No.2 and Defendant No.3 took place as alleged. On the contrary, it is stated that a real physical partition of the jewellery had been effected and the same had been duly handed over as would appear from the two declarations dated 31st March, 1969 and 31st March, 1975 made by the Defendant No.1 as the executrix of the Will. It is also stated that some of the jewellery was given to the Defendant No.3 in view of the said declaration of 1969 by the Defendant No.1 on behest of the Plaintiffs.
32. It is mentioned in the reply that defendant Nos. 2 and 3 were never informed about the purported meeting on 29.9.2008. It is also denied that any letter dated 3.10.2008 was given to defendant nos. 2 and 3 as alleged in the plaintiffs‟ application.
33. Defendant No.2 and 3 have submitted in their written statement that except for item Nos. 4, 5 and 6 (a) in Schedule B to the CS (OS) No.2615/2008 Page 15 of 28 plaint all other properties mentioned in Schedule A as well as Schedule B stand divided and physical possession entrusted, therefore, in view thereof the suit has already become infructuous and is liable to be dismissed.
34. It is argued by the plaintiffs that defendant Nos. 2 and 3 did not respond to defendant no. 1‟s letters nor have they insisted before the Local commissioner to make the statement to the effect that partition has partially taken place. The defendant Nos. 2 and 3 have not produced any proof whatsoever to show that the said items were divided and they have to explain the implication of their statement i.e. as to why the item Nos. 4, 5 and 6-A which are the most valuable items in the entire set of curios and antiques have been left un-partitioned if all the other items could be partitioned. According to the plaintiffs these circumstances establish that physical partition of the properties has not taken place.
35. According to the plaintiffs, as per the Will the defendant No.1 had the discretion in terms of time to decide when the division of curios and antiques would take place. The plaintiffs had reminded the defendant No.1 several times to complete her duties under the trust but on 3.10.2008 when the defendant No.1 formally informed the defendants that she may not be able to carry out the discharge of her functions as a trustee, then the inability of defendant No.1 in physically handing over the possession of the respective shares of the jewellery belonging to plaintiff No.1 surfaced.
CS (OS) No.2615/2008 Page 16 of 28
36. The main contention of the defendant No.1 who is the mother is that after her husband‟s death the defendant No.2 started looking after the joint family properties and managing the affairs of the family including preparing all necessary documents and also obtained her signatures from time to time whenever it was stated to be required. She stated that as a mother she placed full reliance on her elder son and used to sign various papers and declarations from time to time for tax purposes. Since the actual division did not take place in 1969, the same was not brought before the High Court of Calcutta in the proceedings for grant of probate. According to her the defendant No.2 insisted that the division should take place only after the plaintiffs moved into a permanent residence of their own in Delhi. The plaintiffs were thereafter staying at one place or another and it was only in 2001 that the plaintiffs moved to their present residence at Kapashera Estate.
37. As per defendant No.1, the curios, antiques and jewellery including items No.4, 5 and 6 (a) were always in the family safe under lock and key which was handed over to defendant No.2 when the defendant No.1 left for Delhi and, therefore, the defendant No.2 alone could explain the absence of the said items from the safe.
38. Learned counsel for the defendants No.2 and 3 have argued that the relief sought by the plaintiffs in the application under Section 151 CPC cannot be granted at this stage as the main relief sought in the plaint is the same as prayed for in the present application. In support of his submission he has referred to the decision of the Supreme Court CS (OS) No.2615/2008 Page 17 of 28 reported in 1995(3) SCC 257 being Bank of Maharashtra vs. Race Shipping and Transport Co. Pvt. Ltd. & Anr. wherein it has been held that the Court should deprecate the practice of granting interim orders which practically give the principal relief sought in the petition for any better reason than that a prima facie case has been made out without being concerned about the balance of convenience etc.
39. Section 83 of the Indian Trust Act, 1882 (hereinafter referred to as Act) provides, inter alia, that if a trust is incapable of being executed, the trustee "must hold the trust property for the benefit of the author of the trust or his legal representatives". Further, Section 95 of the Act provides for relief to a beneficiary who is deprived of his/ her interest.
40. The learned counsel for the plaintiffs has referred to Section 6(v) and (vi) of the Indian Trust Act, 1882 which postulates that the trust of immoveable property could be created when the author of the trust indicates with reasonable certainty by any word or acts (a) the intention on his part to create thereby the trust (b) purpose of the trust (c) the beneficiary and (d) trust property and transferring the trust property to the trustee. Section 49 of the Act lays down that where the discretionary power conferred on the trustee is not exercised reasonably and in good faith such power can be curtailed by the court of principal civil court of original jurisdiction. Section 59 of the Act also gives the right to sue for execution of the trust. Under Section 60, the beneficiary has the right that the trust property is to be protected. Learned counsel for the CS (OS) No.2615/2008 Page 18 of 28 plaintiff has also cited the decision reported in K.R. Patel v. CIT, (1999) 7 SCC 26 (paragraphs 6 and 22) in support of his submission which read as under:
"6. Against the order of the Income Tax Officer appeal was filed before the Appellate Assistant Commissioner, who also held that the executors and trustees were liable to be assessed in the capacity of executors inasmuch as the administration of the estate had not been completed. The matter was then taken to the Appellate Tribunal. By order dated 16-7-1971 the Appellate Tribunal held that the income ought to have been assessed in the hands of the executors and trustees as trustees and in any case the executors and trustees had shed their characters as executors and acquired that of trustees on 5-4-1963 when probate was granted. The Appellate Tribunal further held that even otherwise the position was that the whole estate including the immovable properties and the amount suggested to be distributed by way of legacy had vested in the executors and trustees as trustees and thus the income of the immovable properties specifically bequeathed and of assets sufficient to pay off the monetary legacies and the outstanding estate duty would be assessable in their hands in their capacity as executors while the income from the remaining assets would be assessable in their hands as trustees. The Appellate Tribunal accordingly directed to make fresh assessment in the capacity as trustees.
22. Examination of the provisions of law and decisions in the aforesaid cases does not lead us to lay any rule of law as to when an executor sheds his character as an executor and when wears the robes of a trustee. It all depends on the construction of the will as to when the testator desired the trust to come into being. For that we have also to see as to when the functions of the executor administering the estate of the testator come to an end. Under Section 302 of the Succession Act, 1925 when probate in respect of any estate has been granted the High Court may, on application made to it, give to the executor any general or special directions in regard to the estate or in regard to the administration thereof. Section 317 of that Act imposes various duties on the executors. Then under Section 366 the surplus or residue of the deceased‟s property, after payments of debts and legacies, shall be paid to the residuary legatee."CS (OS) No.2615/2008 Page 19 of 28
In view of settled law, it is clear beyond any doubt that in case a Trustee is unable to complete his/ her duties under the Trust, another Trustee can be appointed in his/ her place. Therefore, the suit filed by the plaintiffs is prima facie maintainable.
41. Having considered the rival submissions made by the parties, the question before this Court is that at this stage, what are the orders required to be passed in the present application. This Court on 16.12.2008 has already passed orders to maintain status quo with regard to the possession of the items mentioned in Schedule A to D annexed with the plaint.
42. The pleadings in the other applications being application for injunction under Order XXXIX Rules 1 & 2 as well as application for vacation of the injunction in application under Order XXXIX Rule 4 are also complete. However, the said applications are yet to be heard on merit.
43. It appears from the objections filed by the defendant nos. 2 and 3 to the report of the Local Commissioner that the said defendants have admitted that there are some items which are yet to be partitioned i.e. item Nos. 4, 5 and 6 (a) of the Valuer report dated 11.7.1969 mentioned in Schedule B to the plaint. Defendant nos. 2 and 3 have also stated that certain items are lying with in Delhi and physical possession thereof is yet to be effected.
44. It is matter of record that both the Local Commissioners filed their respective reports by giving the details of items lying with the CS (OS) No.2615/2008 Page 20 of 28 plaintiffs and defendants. A perusal of the respective reports of the Local Commissioners reveals as following :
A. Mr. Amit Sethi, Advocate (Ist Local Commissioner) EXECUTION OF COMMISSION AT 18, KAPASHERA ESTATE, NEW DELHI AT THE RESIDENCE OF THE PLAINTIFFS I. One Painting (the detail of which is as under :
1 Painting of Mughal Era showing some Queen/Princes, admeasuring about 20" x 24"
bound in wooden frame.
II. Five Stone Sculptures (the details of which are as under :
2. Small stone sculptures with height of 12 inches (approx.) and with round base having numerous idols of Lord Budha engraved in it.
1 Small stone sculpture with height of 9 inches (approx.) having a square base and having numerous idols of Lord Budha engraved in it. 1 Very small stone sculpture admeasuring 7" x 4"
having small idol of some God engraved in it. 1 Stone sculpture with height of 30 inches (approx.) with round base having engraved idols of Lord Budha on it throughout.
B. EXECUTION OF COMMISSION AT 2ND FLOOR, 4, MUNIRKA MARG, VASANT VIHAR, NEW DLEHI AT THE PREMISES OF DEFENDANT NO. 1 ARTICLES MENTIONED IN SCHEDULE -D I. SIX MANUSCRIPTS (the details of which are as under:-) 2 Pink bound Persian or Arabic Manuscripts (medium size).
1 Small black & gold bound Persian or Arabic Manuscript.
1 Medium sized black bound (with gold border) Persian or Arabic Manuscript. 1 Medium sized brown bound Persian or Arabic Manuscript.
1 Red velvet bound, some Hindu Manuscript.CS (OS) No.2615/2008 Page 21 of 28
II. FOUR GOLD ENAMELS (the details of which are as under:-) 1 Paper cutter with gold enamel handle. 1 Small Gold & Enamel Pendent. 1 Oval shaped gold & enamel pendent. 1 Gold & Enamel Bangle.
III. THIRTY SIX GOLD COINS (details of which are as under:-) 18 Gold Coins (thin) from 1700-1800 AD. 2 Small Thick Gold Coins with some Arabic Inscription.
16 Gold Coins of British Era.
IV. FIVE PAINTINGS & ONE TANKA PAINTING (details of which are as under:-) 5 Small paintings each measuring 6" x 3" bound in acrylic frame (of some Kings/Emperors). 1 Tanka Paining of Budha admeasuring about 20" x 30"
V. FIVE STONE SCULPTURES OF GOD/GODDESS ETC:-
1 Pillar having 4 feet height (approx) with square base & carving throughout.
1 Idol of God having height of 16" (approx.). 1 Idol of God having height of 18" (approx.). 1 Idol of Goddess having height of 24" (approx.). 1 Small idol of God with Ten hands having height of 10" (approx.).
SCHEDULE - C VI. TEN JEWELLERY ARTICLES 1 Pair choori set in gold (white metal) studded with diamonds.
1 Pair choori set rubies in all gold.
1 Ring with square diamond.
1 Pair of earrings studded with diamonds & 2 emeralds each in gold.
1 Ring with 1 piece of ruby & small diamond in it (in gold).
1 Pair of gold chooreys studded with small CS (OS) No.2615/2008 Page 22 of 28 diamonds.
1 Gold enameled Jadau armlet with pearls & parab diamonds.
1 String of ruby beads.
1 Pair of earnings having diamonds & 2 emeralds each (in gold & white metal) 1 Pearl string.
C. Ms. Anju Bhattacharya, Advocate (2nd Local Commissioner) EXECUTION OF COMMISSION AT 48/3, GARIAHAT ROAD, KOLKATA AT THE RESIDENCE OF DEFEDNANT NOS. 2 AND 3 Item No.6 Silver Coins - 2151 Item No.7 Copper grants - 8 Item No.8 Firmans - 6 Item No.9 Tankas - 5 Silver coins numbering 1749+372 were volunteered at the end.
Schedule B
1. Indian Miniature Paintings a. Mughal 18 b. Pahari 2 c. Pensari 2 d. Rajasthani 34 e. Modern copies and rag mala series f. Miscellaneous 3 Total 59 Schedule B
2. Stone Sculptures CS (OS) No.2615/2008 Page 23 of 28 a. Pala 10 b. Gandhara 3 c. Orissa 2 d. Miscellaneous 1+ ½ of stupa sculpture comprising of several broken parts Total : 16+ ½ of stupa sculpture Schedule B
3. Manuscripts a. Illustrated and illuminated Persian & Arabic 26 b. Unillustrated Persian & Arabic 24 c. Sanskrit 2 Total : 52 SCHEDULE A
1. Jewellery 3 items mentioned in category I @ 14, 18 SCHEDULE B
1. Indian Miniature paintings a. Mughal 32 b. Pahari 2 c. Perman 2 d. Rajasthani 84 e. Modern copies later rajmala series 12 f. Miscellaneous 9 Total 141
2. Stone sculpture a. Pala 10 b. Gandhara 3 c. Orissa 2 d. Miscellaneous 1½ Total 16½ CS (OS) No.2615/2008 Page 24 of 28
3. Manuscripts a. Illustrated and illuminated Persian and Arabic 26 b. Unillustrated Persian and Arabic 24 c. Sanskrit 2 Total 52
4. Carved enamels Nil Ruby, diamonds
5. Old gold enamel Nil
6. Coins a. Gold coins Nil b. Silver coins 2151+162 (disputed by Defendants No. 2 & 3) c. Copper coins 809 (disputed by Defendants No. 2 & 3) 7. Copper grants 8 8. Firman 6 9. Tankas 5
45. The table/chart of the various items as given by the plaintiffs is as under :
Sl. Item The number of The number of The number of No. items that are items items lying in Kolkata inventorised inventorised as per the letter during the first during the dated visit of the second visit of 21.07.2008 Local the Local from defendant Commissioner Commissioner no.1 to the on 22.12.2008 on 22.12.2008 Plaintiff No.1 and the Defendant No.2
1. Jewellery Total of 41 The The pieces [i.e., 23 Commissioner Commissioner pieces asked only for asked for the belonging to the items items CS (OS) No.2615/2008 Page 25 of 28 Defendant No.3 belonging to belonging to and 18 pieces Plaintiff No.2. Plaintiff No.2 belonging to The defendants as well as the Plaintiff No.2] 2 and 3 stated Defendant that they did no.3. The not have any. defendants 2 and 3 showed 3 items that belonged to the Defendant No.3.2. Indian 162 59 141
miniature paintings
3. Stone 43 16 pieces and 16 pieces and sculptures also half of a also half of a big stoopa big stoopa 4. Manuscrip 150 52 52 ts 5. Carved 10 0 0 Emralds, ruby and diamond 6. Old Gold 13 0 0 Enamel
7. Coins 8034 2151 3122 [i.e., earlier 2151 plus additional 162 silver coins and 809 copper coins] 8. Copper 10 8 8 grants 9. Firamans 11 6 6 10. Tankas 10 5 5
46. As per the plaintiffs, the following invaluable items have been found to be missing as recorded by the Local Commissioner who visited the residence of defendant nos. 2 and 3 at Kolkata :
Item Missing numbers Jewellery The whole of 18 pieces belonging to the Plaintiff No. 2 Indian miniature paintings 21 Stone sculptures 26 and half CS (OS) No.2615/2008 Page 26 of 28 Manuscripts 98 Carved Emralds, ruby and diamond Whole of 10 items Old Gold Enamel Whole of 13 items Coins 4912 Copper grants 2 Firamans 5 Tankas 5
47. There are various pleas raised by the defendant nos. 2 and 3 as mentioned in previous paragraphs 17-19, 31-33, 38 of my order which are contrary to the averments made by the plaintiffs in their pleadings, thus in my view, all these questions are to be considered on merit at the time of determination of the interim applications. The order of status quo is already under operation between the parties. In any case, defendant no. 1 if she so chooses to exercise her will of distributing the items lying with her in Delhi between the parties can do the same on taking permission of the Court at any point of time even in the presence of local commissioner.
48. At this stage, it seems to me that appointment of a Trustee in place of defendant no. 1 will serve no purpose as there are no acts to be carried out as it is an undisputed fact that certain items which are to be partitioned are untraceable as indicated by the Local Commissioners in their reports and some of the missing items have also not been denied by the parties and the pleas of the Defendants No.2 and 3 are yet to be gone into on merit.
49. After considering the entire gamut of the dispute, at this stage, the present application is disposed of with the directions that the prayer of appointment of Trustee in place of defendant no. 1 will be CS (OS) No.2615/2008 Page 27 of 28 determined at the time of disposing of the pending application and the necessary order would be passes depending upon the merit of the case.
49. In view of the aforesaid directions, no further orders are required to be passed in the present application at this stage. CS (OS) No. 2615/2008
50. List the matter before the Joint Registrar on 12.04.2010 for directions.
MANMOHAN SINGH, J.
MARCH 11, 2010 jk CS (OS) No.2615/2008 Page 28 of 28