Calcutta High Court
Hem Prakash Surana vs Abhay Singh Surana & Ors on 25 August, 2017
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
-1-
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
G.A. No.113 of 2016
In
C.S. No.48 of 2013
Hem Prakash Surana
... Plaintiff
-Versus-
Abhay Singh Surana & Ors.
... Defendants/
Proforma-Defendant
BEFORE:
THE HON'BLE JUSTICE SAHIDULLAH MUNSHI
August 25, 2017.
Mr. Anirban Roy, Adv.
Mr. Soumabho Ghosh, Adv.
... for the plaintiff
Mr. Sayantan Bose, Adv.
Mr. Rudrajit Sarkar, Adv.
... for the defendant no.1
Mr. Dibyendu Chatterjee, Adv.
... for the defendant no.2
Mr. Sakya Sen, Adv.
... for the defendant no.4
Mr.Pranit Bag, Adv.
Mr. Sunny Nandy, Adv.
... for proforma-defendant no.5
-2-
The Court : This G.A. No.113 of 2016 has been filed by the
added defendant no.4 praying for framing an issue with regard to
maintainability of the suit as referred to in paragraph 35 of the said
petition so that the same can be decided as a preliminary issue.
Paragraph 35 is quoted below :
"Your petitioner thus submits that the issue whether the suit filed
is maintainable at the instance of the plaintiff in view of the bar
created under Section 78 of the Trust Act be decided as a preliminary
issue under the provision of Order 14, Rule 2 of Code of Civil
Procedure." Accordingly, the plaintiff has also made a prayer that suit
being C.S. No.48 of 2013 be set down for hearing on the preliminary
issue to be framed in terms of prayer (a) of the petition. In the petition
it has been contended by Gaurav Surana, the petitioner/defendant
no.4 that he is the son of the plaintiff in the instant suit. The
defendant nos. 1 and 2 are his grandfather and grandmother
respectively and defendant no.3 and proforma-defendant are his
uncle. In support of such submission he has relied on a genealogical
chart of Surana family which has been annexed as Annexure 'B' to
the petition. It is undisputed that defendant no.4 was left out in the
suit. He filed an application and on his prayer this Court allowed him
to be impleaded as an added defendant no.4. The said order was
passed on 11th December, 2013 by a Hon'ble Single Judge of this
Court against which an appeal was preferred being A.P.O.T. No.578 of
2013. The said appeal was disposed of by upholding the order passed
-3-
by the learned Single Judge on 11th December, 2013. A Special Leave
Petition arose therefrom and it is submitted at the Bar that the said
Special Leave Petition was also dismissed by the Hon'ble Apex Court.
After being so added as defendant no.4, he filed an application under
Order VII, Rule 11 of the Code of Civil Procedure for rejection of the
plaint. The said application, however, was dismissed by an order
dated 22nd April, 2015. An appeal was filed from the said order dated
22nd April, 2015 and the Hon'ble Division Bench, by an order dated
8th June, 2015, disposed of the said appeal holding, inter alia, that if
the appellant/defendant brings to the notice of the Court how the
suit is not maintainable after filing of written statement before the
learned Single Judge, it would be for the learned Single Judge to
frame issues and allow preliminary issue to be decided. Hon'ble
Division Bench also held that if no evidence is required to decide
such issue, such issue is to be taken as preliminary issue and the
same shall be disposed of. In such background fact, the defendant
no.4, after filing written statement, has come up before this Court for
a decision as to whether the suit filed by the plaintiff should be
allowed to continue for trial or the preliminary issue should be settled
on the issue of law as prayed for. In order to be acquainted with the
rival claims of the plaintiff and the defendants, some amount of
pleadings of the parties are required to be taken note of.
The plaintiff, Hem Prakash Surana, filed the suit against five
persons of which defendant nos.1 to 4 are principal defendants and
defendant no.5 is proforma-defendant.
-4-
The plaintiff has made out a case as follows :
1. That plaintiff is one of the two brothers of a trust named and
styled as "Bachhraj Surana Trust" with the other beneficiary
being the proforma-defendant no.3, his brother. The plaintiff
is 57 years of age and the defendant no.3 is aged 59 years.
2. That the said trust was created by Chand Kumari Devi by a
Registered Trust Deed (hereinafter referred to as the 'Deed of
Trust') dated 20th July, 1966, primarily for the benefit of her
two grand children, namely, Bachhraj Surana Trust
(hereinafter referred to as the said Trust", is governed by
Indian Trust Act, 1882. The defendant nos.1 and 2 are the
only two trustees of Bachhraj Surana Trust.
3. Clause 4(a) of the Trust Deed of the said Trust put the
trustees to an obligation that after meeting the liabilities to
divide the income/profit in two equal shares and crediting
the same to two separate accounts to be maintained in the
name of the plaintiff and the other beneficiary, that is, the
proforma defendant no.3, the said Trust is also liable to be
dissolved on a majority decision of the defendant nos.1 and
2 after the plaintiff and proforma-defendant no.3 attaining
the age of 25 years.
-5-
4. The plaintiff being one of the two beneficiaries of the said
Trust, is entitled to his half share of the rent issues and
profits accruing from the Trust property. However, the
plaintiff has not received his share of the rents issues and
profits for a long period of time. The Trust is being
maintained and administered by defendant nos.1 and 2 as
trustees.
5. Plaintiff has received only a paltry sum of Rs.1,20,000/-
from the defendant nos. 1 and 2 during the years 2010-11
despite demands being made for last two years. The plaintiff
has also not been given any accounts/particulars of the
rents, salami etc. collected from the Trust properties.
6. The plaintiff, by advocate's letter dated 28th December,
2012, called upon the defendant nos.1 and 2 to forthwith
make over the money standing in his account bill for his
maintenance in accordance with the provisions of the Trust
Deed. The plaintiff also requested the defendant nos. 1 and
2 to act in terms of the Trust Deed and to hand over the
-6-
Trust moneys and properties to the beneficiaries under the
Trust.
7. The defendant no.2 also alleged that the defendant no.1 is
not allowing him to participate in the management of the
Trust and the defendant no.1 has informed the plaintiff that
the Trust properties and the Trust moneys ought to be
handed over to the beneficiaries but the defendant no.1 has
failed to take any such steps.
8. According to the plaintiff, the only beneficiaries of the Trust
are the proforma-defendant and the plaintiff. Plaintiff's son,
Gaurav Surana is 29 years of age and the proforma-
defendant's son, Shaleen Surana, is 31 years of age.
Therefore, there is no obligation of the trustees to utilize any
part of the income of the Trust if the plaintiff or the
proforma-defendant dies, on maintenance, education,
marriage, medical relief of or otherwise of the benefit or
enjoyment of the sons of the plaintiff and the proforma-
defendant.
9. The plaintiff and proforma-defendant have both consented
to the Trust being revoked and further that the purpose for
which the Trust was created has been completely fulfilled.
-7-
10. Plaintiff and proforma-defendant, by their separate
letters, both dated 17th January, 2013, asked for revocation
of the Trust. However, the defendant no.1 refused to make
over the assets and properties of the Trust to the plaintiff
and the proforma-defendant. According to the plaintiff, the
Trust has been extinguished and plaintiff is entitled to
decree for dissolution of the Trust. Alternatively, the plaintiff
has made a claim that if the Trust is not held to have been
extinguished or liable to be revoked, the plaintiff is entitled
to a decree for removal of defendant nos.1 and 2 as trustees
and for appointment of new trustees as also for framing of a
scheme for management and administration of the Trust till
such time as it is dissolved. The plaintiff made the following
prayers :
"a) Declaration that the Bachhraj Surana Trust created by
Trust dated 20th July, 1966 has been revoked and liable
to be dissolved and the assets and properties thereof be
made over to the plaintiff and proforma Defendant in
equal share.
b) The defendants No.1 and 2 be directed to render true
and faithful accounts of all their dealings and
-8-
transactions with the Trust Estate and decree for such
sum as may be found due and payable upon such
accounts being taken.
c) Decree for removal of the Defendants No.1 and 2 and
especially the defendant No.1 as trustee of Bachhraj
Surana Trust.
d) Decree for appointment of Trustees in Bachhraj Surana
Trust in place and stead of the Defendant Nos.1 and 2.
e) In case, decree as claimed in prayer (a) above is not
granted, a Scheme be framed for management and
administration of the trust and till such time the Trust
is dissolved.
f) Perpetual injunction restraining the defendant Nos. 1
and 2 from holding themselves out as Trustees or
intermeddling with the affairs of the assets and
properties of Bachhraj Surana Trust created by deed of
trust dated 20th July, 1966.
g) Perpetual injunction restraining the defendant Nos. 1
and 2 from dealing with disposing of on in any manner,
-9-
encumbering any part or portion of the assets of
Bachhraj Surana Trust and especially the premises
No.3A Mangoe Lane, Kolkata - 700001 where the Trust
has 1/6th Share.
h) Injunction;
i) Attachment;
j) Receiver;
k) Costs;
l) Such other or further relief."
The defendant no.4 is an added defendant. He has filed a
written statement and he submits in his written statement that
(i) The Trust has been created by a Registered Deed of
Trust dated 20th July, 1966 by Smt. Chand Kumari
Devi, since deceased, the great grandmother of the
defendant no.4.
(ii) Purpose of the Trust is to use the income of the
Trust for education, maintenance, marriage,
medical relief and benefit and enjoyment of the
plaintiff and proforma-defendant during their
lifetime and thereafter, the trustees were given
- 10 -
discretion to, if thought expedient on a majority
decision, to hand over the Trust properties to the
plaintiff and the proforma-defendant.
(iii) On the death of the plaintiff and the proforma-
defendant the trustees were to use or utilize the
Trust properties or its income or maintenance,
education, marriage, medical relief and benefit of
the son or sons of the plaintiff and the proforma-
defendant subject to the benefits which were
granted to the plaintiff and the proforma-
defendant. According to the defendant no.4, on a
comparison of clause 4(a) and clause 4(b) of the
Deed of Trust, it would be clear that while
discretion was given in clause 4(a) to hand over the
Trust properties to the beneficiaries mentioned
therein, no such discretion was allowed to the
trustees to clause 4(b).
(iv) According to the defendant, it is clear from the
Trust Deed that the plaintiff and the proforma-
defendant are mere beneficiaries during lifetime
under the Trust and are entitled to maintenance
and other benefits from the Trust only during their
- 11 -
lifetime. It is further contended by the defendant
that it is clear from the Trust Deed that defendant
no.4 being the only son of the plaintiff and Shaleen
Surana, being the only son of the proforma-
defendant, are the ultimate beneficiaries of the
Trust. It is further added that after birth of this
defendant no.4, Shaleen Surana, neither the
plaintiff, nor the proforma-defendant can claim to
be the only and ultimate beneficiaries of the Trust.
It is the definite contention of the defendant no.4
that the plaintiff and the proforma-defendant are
not the only beneficiaries under the Deed of Trust
and, therefore, merely on their consent the Trust
cannot be revoked.
(v) According to the defendant, purported claim made
by the plaintiff that by reason of the consent given
by the plaintiff and the proforma-defendant, the
Trust has stood revoked, is a misconceived
representation before this Court and particularly
when such contention is contrary to the provisions
of Section 78 of the Indian Trust Act, 1882.
- 12 -
(vi) The defendant has denied all material allegations
made against him and particularly that apart from
the plaintiff and defendant no.2, there is no other
beneficiary of the Trust. It has been specifically
contended that the defendant no.4 and Shaleen
Surana, as pointed out earlier, are the two persons
who should be considered to be the ultimate
beneficiaries of the Trust in terms of the Trust
Deed. The defendant states that the averment
made in the plaint does not match with the
declaration made in the Trust Deed.
(vii) According to the plaintiff, the suit is liable to be
dismissed on the ground of gross under-valuation
of the Court fees and that the plaintiff is also not
entitled to any relief in the instant suit.
In the application being G.A. 113 of 2016, the
petitioner/defendant no.4 has sought to make out a case that since
other beneficiaries are available according to the Trust Deed, the suit
framed on the plaint reading that plaintiff and defendant no.2 are the
only beneficiaries, should not be allowed to continue and that even if
the suit continues, the same should continue only on the question of
law to be framed as a preliminary issue but the Court should not
allow to frame any issue of fact. According to the defendant no.4,
there is no necessity to allow the plaintiff to lead any evidence
- 13 -
inasmuch as the entire attempt of the plaintiff to revoke the Trust
frustrates the object of Section 78 of the Indian Trust Act, 1882.
According to the plaintiff, provisions of Section 78 stands in the way
of the plaintiff to lead any further evidence that there is no other
beneficiary having regard to the fact that clause 4(b) of the Trust
Deed indicates that apart from the plaintiff and proforma-defendant
there are other beneficiaries.
Extensive argument has been forwarded on behalf of the
defendant no.1 and vehement objection has been raised to the effect
that plaintiff cannot have any declaration as made in Prayer (a) of the
plaint and if he cannot maintain Prayer (a) of the plaint, there is no
need for the suit to go for trial on evidence. Therefore, on a
preliminary issue the suit may continue on the question of law.
According to the learned counsel for the defendant no.1, the
Trust is revocable one and, therefore, the attempt made by the
plaintiff is a futile exercise to pray for revocation of Trust. He submits
that paragraph 4(a) of the Trust Deed has been admitted by both the
plaintiff and defendant. Therefore, question of dissolution of the Trust
does not arise because Jaswant Kumar Surana and Hem Prakash
Surana are the brothers for their life. Other defendants are also
represented by their learned counsel and they adopted the
submissions made by the learned counsel appearing for the plaintiff.
Learned counsel appearing for the plaintiff/respondent in this
application has vehemently opposed the contention raised by and on
- 14 -
behalf of the defendant no.4 that the suit should be decided on a preliminary issue and that no trial is at all required. He submits that scope of Order XIV, Rule 2 is very very limited and Court should restrict itself within the scope of Rule 2(a) and (b). According to him, Rule 2(a) touches the question relating to jurisdiction of the Court.
In the instant case, it is admitted by the parties that Court has got jurisdiction whether it is territorial, pecuniary or inherent. Learned counsel for the plaintiff submits that Rule 2(b) is attracted, if at all, in the present case and the same is to be considered by the Court. According to him, whether is there any bar to the suit created by any law for the time being in force and for that purpose, whether Court is required to postpone the settlement of other issues until after that issue has been determined and whether Court may deal with the suit in accordance with the decision of the issue of law is the subject-matter in issue in this petition filed by defendant no.4. Learned counsel submits that the submission which has been made on behalf of the defendant no.4 that Section 78(a) of the Trust Act specifically mentions that when all the beneficiaries come forward for dissolution of the Trust only then the Trust can be dissolved. According to him, defendant no.4 is the ultimate beneficiary and, therefore, the purported revocation so made at the instance of plaintiff and proforma-defendant no.5, is mischievous and cannot be held to be maintainable. In order to substantiate his argument he has relied on the order dated 11th December, 2013 whereby Gaurav Surana was added as a party-defendant. He has pointed out that
- 15 -
Court has already formed an opinion that the defendant no.4 is a beneficiary and on such consideration he is added as defendant no.4. He has also pointed out that Court has already held that as per clause 4(a) of the Trust Deed Jaswant Kumar Surana and Hem Prakash Surana would enjoy the income of the Trust properties for their lives. He also submits that Section 78 of the Indian Trust Act, 1882 operates as a bar against the Court, is and/or cannot be said to be a bar for the Court to postpone the settlement of other issues for the purpose of proceeding with the suit on the basis of trial on evidence. According to him, Section 78 of the Indian Trust Act, 1882 is not a bar upon the Court for proceeding with the suit but it creates only rights between the parties by virtue of which right the suit cannot be held to be not maintainable or it cannot be held that no issue of fact is at all required on the question whether the plaintiff can get a decree for declaration that the Trust itself has been dissolved or revoked on the conduct of the plaintiff and the defendant no.1. Learned counsel further submits that Section 78 does not at all operate as a bar for proceeding with the suit but it makes certain contingencies which according to him, if taken into consideration, is sufficient to demolish the argument advanced by the defendant no.4, because in order to arrive at a correct interpretation of Section 78 of the Indian Trust Act, 1882, as to who are the beneficiaries of the Trust is of prime importance. Therefore, according to the learned counsel for the plaintiff, the argument advanced by the learned
- 16 -
counsel for the defendant no.4 does in no way get support either of Rule 2 (2) (a) or Rule 2 (2) (b) of Order XIV, to substantiate his case.
According to the learned counsel for the defendant no.4, there is no dispute that defendant no.4 is a beneficiary of the Trust. He further submits that in view of the order dated 8th June, 2015, passed by the Hon'ble Division Bench to the effect that "if the appellant/defendant brings to the notice of the Court how the suit is not maintainable after filing of written statement before the learned Single Judge, it is for the learned Judge to frame issues and allow the preliminary issue to be decided. If no evidence is required to decide such issue, such issue is to be taken as preliminary issue and the same shall be disposed of." He further added that since the plaintiff has not sought consent of other beneficiaries, namely, the defendant no.4 and Shaleen Surana, the stand so taken for revocation of Trust cannot survive in view of Section 78 of the Indian Trust Act, 1882.
He relied on a judgment in the Case of S.G.Badrinath - Vs. - V. Jagannathan, reported in AIR 2004 Madras 161. The said decision has no bearing in the present case inasmuch as it is apparent from the said decision that the same relates to the question of jurisdiction. It was argued before the trial Court that since the Court has no jurisdiction the question may be considered to be a preliminary issue. Findings of Court in that regard have been narrated in paragraphs 14 and 15 of the judgment and those are set out below:
- 17 -
"14. Issue at jurisdiction of a Court could not be said to be purely an issue of law, some cases issue involved mixed questions of fact and law. Merely because some evidence was required to be taken an issue could not be refused to be tried as preliminary issue such as an issue regarding jurisdiction or maintainability of suit or Court-fee. However, Courts could try issue as preliminary issue only if the facts are independent and self-contained and do not have any bearing on the facts which may arise for consideration of the suit.
15. In this case, both oral and documentary evidence were let in by the parties. The trial Court applied its mind and came to the conclusion that it is not vested with the jurisdiction. I am, at this stage, not expressing any opinion on the allegations made by the petitioners and respondents are true. I am only concerned to point out that what is regarded as preliminary issue as to the jurisdiction of the Court has been decided perfectly or not. Materials placed before the trial Court, in particular Ex. A9 and A10, which were executed at Madras, the fact that power of attorney of the plaintiff and the defendants are residing at Madras and the relief sought for is recovery of money simpliciter were made it to reach the right conclusion that it was not vested with the territorial jurisdiction. I do not find any infirmity in the said order."
It is, therefore, clear that the issue relating to jurisdiction of a Court may be tried as a preliminary issue which is different in the present case.
The ratio of the said decision is distinguishable in the facts of the present case.
- 18 -
I have heard the parties at length. I have gone through the provisions of Order XIV, Rule 2 of the Code of Civil Procedure as amended by Act 104 of 1976 which has been made operative with effect from 1st February, 1977. On a cursory reading of Rule 2 it appears that the Legislature has thought it fit that notwithstanding a case may be disposed of on a preliminary issue, but Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. The bars under the provisions of Order XIV, Rule 2, Order VII, Rule 11, Section 11, Order IX and Order IX, Rule 9 look alike but still are distinct from each other. The object of Order VII, Rule 11 is to dismiss the suit at the threshold if Court finds that the suit is a bogus one and the litigating parties will be subjected to harassment by virtue of continuance of such a bogus suit. There are grounds mentioned under Order VII, Rule 11 on which a bogus suit can be shut out at the threshold. In the present case, the parties resorted to shut the plaintiff out of the litigation by invoking the provisions of Order VII, Rule 11, CPC, and made a prayer before the learned Single Bench for rejection of the plaint. When an application is made under Order VII, Rule 11, CPC, the parties and the Court should restrict themselves within the periphery of the pleadings in the plaint and plaint only and the Court cannot have any opportunity to consider any other pleadings or documents. If a Court can be satisfied -
a) That the suit does not disclose cause of action;
- 19 -
b) That relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
c) That whether the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
d) That whether the suit appears from the statement in the plaint to be barred by any law;
e) That whether the plaint is not filed in duplicate; and
f) That whether the plaintiff fails to comply with the provisions of Rule 9 under Order VII.
None of the above issues could be placed before the Court so as to obtain an order for rejection of the plaint. However, in an appeal from the order rejecting plaintiff's application under Order VII, Rule 11, CPC, the Hon'ble Division Bench held that preliminary issue could be framed after the filing of written statement.
I have considered the pleadings in the written statement filed by the defendant no.4 save and except mentioning again and again that the defendant no.4 is also a beneficiary of the said Trust, no other material is available from the Trust Deed or from the written statement that the suit cannot be proceeded on factual issue as
- 20 -
raised by the plaintiff. It is undisputed between the parties that they are governed by the same Trust Deed. Both the parties draw the attention of clause 4(a) and 4(b) of the Trust Deed. Clause 4(a) of the Trust Deed says that the income of the Trust would, after meeting the liabilities, be divided in two equal shares and will be credited to the separate accounts to be maintained in the names of Jaswant Kumar Surana (proforma-defendant no.5) and Hem Prakash Surana, the plaintiff. The trustees shall apply in equal shares the whole or part of the income of the Trust properties for the maintenance, education, marriage, medical relief and otherwise for the above use, benefit and enjoyment of Jaswant Kumar Surana and Hem Prakash Surana during their lifetime but the trustees may, by their majority decision, hand over the Trust monies and properties to the said Jaswant Kumar Surana and Hem Prakash Surana, any time after they attain the age of 25 years, in equal shares and the amount standing in their respective accounts would be made over to them.
Clause 4(b) of the said Trust Deed says that if the said Jaswant Kumar Surana and Hem Prakash Surana died leaving any son or sons, the trustees would hold the Trust properties and apply the whole or part of the income of the Trust properties for the maintenance, education, marriage, medical relief and other relief and otherwise for the absolute use, benefit and enjoyment of the sons of Jaswant Kumar Surana and Hem Prakash Surana till he or they respectively attain the age of 25 years and on his or their respectively attaining that age they will hand over the one equal half of the Trust
- 21 -
properties to the son or sons of each of the said Jaswant Kumar Surana and/or Hem Prakash Surana per stripes to be held by them absolutely.
On a conjoint reading of the said two provisions 4(a) and 4(b) of the Trust Deed it appears that in clause 4(a) the beneficiaries have been named but so far other beneficiaries are concerned, it mentions that the son or sons of Jaswant Kumar Surana and/or Hem Prakash Surana would also be the beneficiaries of the said Trust. The defendant no.4 has come forward after his application for addition of party being allowed by the Court. Apart from Jaswant Kumar Surana and Hem Prakash Surana, this Court does not find any other named beneficiary in clause 4(b) of the Trust Deed. Therefore, if a person claims that he is a beneficiary and when his or their names do not appear from the Trust Deed, it is a difficult task for the Court to come to a conclusion that he or they are the remaining beneficiaries of the Trust. It is similarly difficult for the Court to come to a conclusion that defendant no.4, Gaurav Surana, as it appears from the order by which he has been added as a party that he is the son of Jaswant Kumar Surana. Whatever has been brought to the notice of the Court is based on affidavits and counter-affidavits filed by the parties. In a suit when a party makes a claim based on certain pleadings Court cannot decree or dismiss the suit simply on the basis of affidavit. It is required to be verified on the touchstone of the evidence to be led in support of the plaintiffs and the defendants, in support of their claims and rival claims. Therefore, as sought to be argued by the
- 22 -
learned counsel for the defendant no.4 that no further consideration is necessary to come to a conclusion that apart from the plaintiff and proforma-defendant no.5, there are also beneficiaries for the Trust, is an argument apparently attractive but, in my view, does not make any substance to hold that the suit need not be tried on evidence. The fact of the case is very ugly. It is a contest between the fathers and sons with regard to the income and profit arising out of a Trust property. Be that as it may, since a suit has been filed by the parties, the Court is under obligation to decide the issues and this Court is of the view that the issues which have been raised by the parties require consideration on evidence. Without trial of evidence it is not possible for the Court to come to a definite conclusion that there are beneficiaries other than the plaintiff and the proforma-defendant. Record reveals that parties have disclosed their documents earlier by order of Court. Inspection, re-inspection has been allowed by Court subject to payment of costs. Application under Order VII, Rule 11, CPC, has been dismissed. Appeal was preferred and wherefrom the defendant no.4 has got an effort to make this application but this Court is unable to hold that Order XIV, Rule 2 has any application in the present case. Section 78 of the Trust Act does not create any bar for proceeding with the instant suit. It is true that unless all the beneficiaries sign for revocation, the Trust cannot be revoked at the instance of two beneficiaries only but this is a question cannot be decided on the basis of affidavit filed by the parties. This has to be done only upon taking evidence of the parties to that effect. The
- 23 -
plaintiff should get an opportunity to prove that there is no other beneficiary and if fails his suit will fail. Even to apply the ingredients of Section 78 of the Trust Act, evidence is required. Till now I have not found any amount of admission by the plaintiff that defendant no.4 is a beneficiary of the Trust.
On a close scrutiny of the provisions of Order XIV, Rule 2 it appears that only an issue of law which does not require any evidence to prove it, can be treated as a preliminary issue.
Learned counsel appearing for the plaintiff has relied on the following decisions :
• Gurudas Biswas - Vs. - Charu Panna Seal & Ors., reported in AIR 1977 Cal 110.
• Kanailal Mitra - Vs. - Pannasashi Mitra, reported in AIR 1954 Cal 588.
• Foreshore Co-operative Housing Society Limited - Vs.
- Praveen D. Desai (Dead) Through LRs. & Ors., reported in (2015) 6 SCC 412.
Based on the ratio in those judgments the learned counsel submits that this is not a case where Court should frame a preliminary issue and bar of jurisdiction within the meaning of Order XIV, Rule 2 (2) (b) is not attracted at all. Therefore, the application praying for preliminary issue should be dismissed.
- 24 -
From a reading of the written statement on the basis of which the learned counsel for the defendant no.4 submits that no other consideration is required to be made by the Court and only on the basis of clause 4(b) of the Trust Deed Court can arrive at a finding that prayer (a) of the plaint is not maintainable, cannot be accepted having regard to the fact that apart from the number of beneficiaries or names of beneficiary mentioned in plaint, who is an actual beneficiary, is required to be decided on evidence. Pleadings made in the written statement are not sufficient to hold for a Court to declare defendant's right simply on the basis of his pleadings. Law requires that Court should pronounce judgments on the basis of evidence but not pleading alone.
Secondly, when such pleading of the defendant is contrary to the pleading in the plaint, Court has no other option but to put the parties in the box. It has been pleaded by the defendant that he is also a beneficiary as per Trust Deed, and since the plaintiff has admitted the said Deed of Trust, Court can accept that this is the Deed of Trust but as to whether the defendant has acquired right of beneficiary or he is qualified to be a beneficiary or he has attained the age to become a beneficiary, are matters of trial on evidence only. Defendant being not a named beneficiary, the task of the Court is more difficult for to even conclude that the defendant is a beneficiary. Learned counsel for the defendant no.4 showed that "my predecessor- in-office accepted him as a beneficiary and on such consideration he has been added as a defendant." Such finding, in my opinion, is
- 25 -
absolutely prima facie at the interlocutory stage but subject to the final adjudication of the suit on evidence and not otherwise. This is unlike the issues relating to a question of bar under Order IX, Rule 9 or Section 11 of the Code of Civil Procedure or any bar of jurisdiction. Section 78 of the Indian Trust Act, 1882, does not create any bar express or by necessary implication so that it can attract the provisions of Order XIV, Rule 2 of the Code of Civil Procedure. Section 78 provides for certain contingencies under which a Trust shall not be deemed to be revoked but it depends on a situation which is based on certain facts, requires scrutiny and the same has to be justified only on the basis of evidence available at the instance of the parties.
Why Court should take responsibility on itself to declare the status of a litigating party simply on his averment either in the plaint or in the written statement without calling such parties in the box. Therefore, despite giving due importance to the arguments advanced by the parties I am unable to hold that the suit can be finally disposed of on the basis of only preliminary issue and no trial is required.
The application filed by defendant no.4 cannot be sustained and the same is dismissed.
Let the suit appear for framing of issue one week after vacation. It is submitted by the learned counsels for the parties that some other applications are also pending. Let those applications be listed on the next date.
- 26 -
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.) P.A.