Calcutta High Court (Appellete Side)
Sarat Kumar Law & Anr vs Gouri Law & Ors on 13 September, 2023
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
13.09.2023.
Item No. 20.
Court No. 13
sp F.A. No. 75 of 2011
With
I.A. No. CAN 2 of 2013 (Old CAN 9573 of 2013)
Sarat Kumar Law & Anr.
Versus
Gouri Law & Ors.
(Sankar Law since deceased)
Mr. Sabyasachi Chowdhury,
Ms. Amrita Pandey,
Mr. Ghanshyam Pandey.
...For the appellants.
Mr. Sounak Bhattacharya,
Mr. Sounak Mandal,
Mr. Abhirup Halder,
Mr. Anirban Saha Ray.
..For the respondent Nos.1(a) & 1(b).
Mr. Shiladitya Burma.
...For the respondent no.16.
1. The appeal is directed against the judgment and decree dated June 30, 2010 passed by the learned Civil Judge (Senior Division) 9th Court at Alipore in Title Suit No. 26 of 2001.
2. By the impugned judgment, the Court below upheld the right of the settlor of a Trust Deed dated 17th September, 1983.
3. This Court shall confine itself to the sole issue raised by the counsel for the appellant and shall discuss the facts only to that extent.
4. By a registered Deed dated 17th September, 1983, the settlor Mohamaya Law, widow of Late Tulsi Charan Law, created a Trust in respect of a residential 2 property standing in her name and situate and lying at premises No.8, Pritoria Street, kolkata - 700 071.
5. By the said Trust Deed, four of her sons, including the widow of a deceased son, were allotted various parts and portions of the said residence. The settlor was to remain as trustee during her life time. The beneficiaries, sons and daughter-in-law were invested with the responsibility of maintaining the property and caring for the settlor. Upon the death of the settlor, the portion of the property being occupied by the beneficiaries respectively was to devolve upon each them.
6. There are various other terms and conditions stipulated in the trust deed which need not be gone into. What is, however, necessary to be set out hereunder is Clause 6 of the said trust deed .
"6. Notwithstanding anything hereinbefore contained the Settlor shall have the liberty to modify and/or revoke the provisions herein contained in such manner and form as she will decide in her absolute discretion."
7. The terms and conditions of the trust deed continued to be implemented by the parties. They lived peacefully in the suit property until sometime before September 21, 2000.
8. On the said date, i.e., September 21, 2000, the settlor invoking Clause 6 of the said trust deed, by a registered deed, invoking revoked the entire trust and settlement.
3
9. The reasons stated for revocation are, inter alia, that the appellants did not treat the settlor properly and misbehaved with her. There are various other allegations against the appellant beneficiaries.
10. On the very next day, i.e., September 22, 2000, the settlor executed a deed of gift of the entire property in favour of the defendants/respondents Biswanath Law and Sankar Law, two of her four sons.
11. The Court below, after receiving the written statement from the defendants, framed seven issues and one additional issue.
12. The parties led oral evidence. The court below upheld the revocation of the trust deed and the subsequent gift deed.
13. Mr. Sabyasachi Chowdhury, learned counsel appearing for the appellants, in his usual fairness submits before this Court that the scope of the appeal remains within a narrow compass, i.e. as to whether by reason of Clause 6 of the trust deed, the settlor could have revoked the entire deed itself.
14. Mr. Chowdhury would argue that a plain reading of Clause 6 set out hereinabove would indicate that the settlor at best could have modified certain Clauses of the trust deed or revoked portions thereof. She was not entitled to revoke the deed itself as a whole. 4
15. This Court notices that a trust can be revoked, inter alia, under Section 77 Sub-Clause d when it is stated to be expressly revocable.
16. It appears to this Court in no uncertain term that the settlor, by reason of the covenant contained in Clause 6 set out hereinabove, had indeed reserved to herself the right of revocation.
17. As to whether the said right of revocation entitles the settlor to revoke the trust deed as a whole and/or dissolve and extinguish the Trust, has to carefully construed by applying each and every word and also reading the Clauses as a whole.
18. It appears to this Court that by use of the phrases in Clause 6 the settlor shall have the liberty to:-
(a) to Modify and/or revoke;
(b) to modify and/or revoke the provision herein;
(c) to modify and/or revoke the provision herein contained;
(d) To modify and/or revoke the provision herein contained in such manner and form;
(f) To modify and/or revoke the provision herein contained in such manner and form as she will decide her absolute discretion,
(g) The chronology of the clearly invested upon and entitled the settler to revoke the trust deed as a whole.5
19. The provisions of Sections 77 and 78 of the Indian Trust Act, 1882 particularly, Section 77(d) empowers any settlor to a trust, to revoke the trust deed if such right of revocation is expressly provided for in the trust deed. A conjoint reading of Section 77(d) of the Act with Clause 6 of the trust deed would essentially imply that once a power of revocation is reserved by a settlor in the trust deed. The trust can be revoked in any manner either, in part, or a substantial part, or the deed itself as a whole. This would follow from a plain reading and/or interpretation of Clause 6. The said interpretation is also be necessary to give effect to the intention of the settlor as can be gathered from the Trust Deed as a whole.
20. This Court, therefore cannot find any infirmity in the impugned judgement and order upholding the right of the settlor Mahamaya Law to revoke the trust deed dated September 17, 1983.
21. The impugned judgement dated June 30, 2010 passed by the learned Civil Judge (Senior Division) 9th Court at Alipore in Title Suit No. 26 of 2001 is upheld.
22. F.A. 75 of 2011 shall stand dismissed.
23. In view of the above, pending applications, if any, shall automatically stand dismissed. 6
24. All parties are directed to act on a server copy of this order duly downloaded from the official website of this Court.
(Rajasekhar Mantha, J.) (Supratim Bhattacharya, J.)