Calcutta High Court
Hem Prakash Surana vs Abhay Singh Surana & Ors on 11 December, 2013
Author: I. P. Mukerji
Bench: I. P. Mukerji
ORDER SHEET
GA 587 OF 2013
CS 48 OF 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
HEM PRAKASH SURANA
Versus
ABHAY SINGH SURANA & ORS.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
Date : 11th December, 2013.
Mr. S. Sen, Adv. appears.
Mr. P. Sancheti, Adv. appears.
Mr. J. Chowdhury, Adv. appears.
Ms. U. Bagri, Adv. appears.
Mr. J. Choudhury, Adv. appears.
Mr. S. Nandy, Adv. appears.
Mr. S. Ghosh, Adv. appears.
Mr. D. Chatterjee, Adv. appears.
The Court : The question before this Court is: whether Gaurav Surana, son of Hemprakash Surana and Shaleen Surana, son of Jaswant Kumar Surana, are to be added as party defendants in the suit?
Whether these two persons are to be added as party defendants, as rightly pointed out by Mr. Sen for the applicants, depend on whether they have sufficient prima facie interest in the subject matter of the suit so that their presence may be considered necessary or proper by the Court.
Before answering this question, I observe that the suit is instituted by one of the beneficiaries for dissolution of the Trust by an order of this Court.
In my opinion, consideration of clauses 4(a) and 4(b) of the Trust Deed is of paramount importance.
According to clause 4(a), Jaswant and Hemprakash would enjoy the income of the trust properties for their lives. But the trustees had a discretion, which had to be taken by majority decision, to hand over the trust money to these persons, after they attained the age of 25 years, in equal shares.
2
Clause 4(b) stipulated that if Jaswant or Hemprakash died leaving behind a son, the income of the Trust would be partially applied for the benefit of the son or sons also.
These provisions in the Trust Deed very plainly demonstrate that if Jaswant and Hemprakash remained bachelors, the position would be something and it would be something else if either married and had a son.
Now Gaurav and Shaleen are the sons of Jaswant and Hemprakash. Therefore, undoubtedly the condition in the Trust Deed that in case Jaswant or Hemprakash or both had sons the disposition would take a different turn, has taken effect, but would take full effect if either Jaswant or Hemprakash or both died.
Thus, it is very difficult to deny these applicants the claim to be joined as parties to the suit and contest the prayer of the above beneficiaries for dissolution of the Trust. By dissolution of the trust they would get nothing whereas by operation of clause 4(b) there is a possibility for Gaurav and Shaleen to get something on the death of their father. That is their interest in this suit, in my opinion.
I am also of the view that it is very doubtful whether the trustees can now, by majority, hand over the trust monies to Jaswant and Hemprakash in terms of clause 4(a) of the Trust Deed. This is so because clause 4(b) of the Trust Deed has come into operation. They could only do so if clause 4(b) of the Trust Deed did not come into operation by virtue of the bachelorhood of Jaswant Kumar Surana or Hemprakash Surana. Otherwise, if clause 4(a) of the Trust Deed, regarding handing over of the entire trust money to Hemprakash and Jaswant Kumar, could be effected now, it would render clause 4(b) of the Trust Deed, which has come into operation, otiose.
This application is thus allowed by passing orders in terms of prayer (a) of the Notice of Motion.
The Department will carry out the amendment within three weeks of communication of this order, Christmas holidays excepted.
The Advocate on Record for the plaintiff will serve a copy of the amended plaint on each of the Advocates on Record for the defendants.
I make it clear that all observations made above are prima facie and all questions on merits are kept open.
Department and all parties concerned are to act on signed photocopy of this order on the usual undertakings.
(I. P. MUKERJI, J.) tk