Calcutta High Court (Appellete Side)
Smt. Sikha Das & Anr vs Sri Jitendra Kumar Boral & Ors on 6 April, 2009
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Tapan Kumar Dutt
F.A. No. 200 of 1998
Smt. Sikha Das & Anr.
Versus
Sri Jitendra Kumar Boral & Ors.
For the Appellant: Mr. Kashinath De,
Mr. Naba Krishna Das.
For the Respondent: None.
Heard on: 12.03.2009 & 17.03.2009.
Judgment on: 6th April, 2009.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of the defendant Nos.1 and 2 in a suit for declaration and permanent injunction and this appeal is preferred against the judgment and decree dated 30th May, 1998, passed by the learned Trial Judge, Eleventh Bench, City Civil Court at Calcutta in Title Suit No.270 of 1994 thereby passing a decree in the said suit.
The respondent filed a suit being Title Suit No.270 of 1994 against the appellants for declaration that sale of premises No.7/1, Jhamapukur Lane, Calcutta effected on 16th December, 1992 by the defendant No.2 in favour of the defendant No.1 was void, inoperative and not binding upon the plaintiff and for further declaration that the defendant No.1 was not the owner of the said premises by purchase from the defendant No.2. The plaintiff further prayed permanent injunction restraining the defendant No.1, her men and agents from transferring, assigning for otherwise dealing with the said premises.
The case made out by the plaintiffs may be summed up thus:
a) At all material time, the premises No.7/1, Jhamapukur Lane belonged to one Pratul Chandra Boral, the father of the plaintiff and the defendant No.2 and the paternal grandfather of the proforma defendants, who purchased the said premises by an indenture of conveyance dated 29th January, 1934.
b) While the said Pratul Chandra Boral was in possession of the said property, he executed a deed of settlement on 18th April, 1934 and settled the property in favour of one Smt. Surabala Debi as a trustee to hold the said property during her natural lifetime for her own use and occupation without any power of alienation or disposal. The said deed of settlement provided that subject to the restrictions of enjoyment of the trust property, the trust property would vest upon the death of the said Smt. Surabala to such or all the three sons of Pratul Chandra Boral, i.e. the plaintiff, the defendant No.2 and one Rai Charan Boral, since deceased, as the said Smt. Surabala would choose during her lifetime. It was further provided that in case of failure on the part of the said Smt. Surabala to make such a choice, all the aforesaid three sons of Pratul Chandra Boral would become the ultimate owners on the death of Smt. Surabala.
c) Shortly after the execution of the said settlement deed, Smt. Surabala set up an idol of Laxmi Narayan Jew and installed the same in the trust property with the full knowledge and consent of the settlor and subsequently, on 8th July, 1941 the said Pratul Chandran Boral executed a further registered deed revoking the power of Smt. Surabala Debi of appointing in her absolute discretion anyone or more of the three sons of the settlor in whom the right of enjoyment of the trust property would vest as provided in the trust deed of the year 1934. The subsequent deed of the year 1941 provided that the trust property would be held and enjoyed by Smt. Surabala in the manner provided in the earlier deed of settlement but she would hold the trust property for the benefit and worship of the idol viz. Laxmi Narayan Jew.
d) The said deed of 8th July, 1941 empowered Surabala to appoint by the deed or by will anyone or more of the three sons of the settlor for proper maintenance and worship of the said idol.
e) On 30th May, 1974 Surabala died and shortly thereafter, the youngest son of the settlor namely, Radha Charan Boral, the defendant No.2, made representation in writing to the tenants that Smt. Surabala appointed him as trustee to hold the trust property for the benefit of the said idol. Such representation was made behind the back and without knowledge of the plaintiff and on that basis, the tenants started paying rent to the defendant No.2 believing him to be trustee of the trust property for the benefit of the said idol.
f) In the third week of December, 1992 the tenants received a communication from the defendant Nos.1 and 2 wherefrom they came to learn for the first time that the trust property was sold out by the defendant No.2 to the defendant No.1 absolutely against valuable consideration on 16th December, 1992.
g) As Laxmi Narayan Jew was the family idol worshiped with profound respect by the plaintiff and the income arising out of the trust property was for the benefit of the idol, the said property could not be lawfully transferred by the defendant No.2 to anyone and as such, the transfer was void. The defendant No.1, therefore, acquired no right, title and interest in the trust property.
The suit was contested by the appellants by filing written statement thereby denying the material allegations made in the plaint and the defence of the appellants may be summed up thus:
a) The defendant No.1 had purchased the property on the strength of a registered deed of conveyance dated 16th December, 1992 from the defendant No.2 who was the absolute owner of the suit property at a valuable consideration mentioned in the deed and after purchase of the said premises, the defendant No.1 filed a suit against the tenants for eviction and such suit was pending.
b) The instant suit is the counterblast of the ejectment suit filed by the defendant No.1 against the tenant by raising a sham dispute. Pratul Chandra Boral, the original settlor, having reserved no right to revoke the trust deed of 1934, the subsequent deed of 1941 was invalid as before execution of such deed consent of the beneficiaries under the trust was not taken.
c) Smt. Surabala did not create any Debattor Estate over the trust property nor had she any such right as her right was limited to enjoyment during her lifetime.
d) The said Surabala by a registered deed having appointed the defendant No.2 to hold the property as her successor in terms of the right conferred in the original trust deed of the year 1934, the defendant No.2 became the absolute owner of the property on the death of Smt. Surabla and thus, had the right to transfer the property in favour of the defendant No.1. The suit was, therefore, liable to be dismissed.
At the time of hearing of the suit, one Swapan Kumar Boral gave evidence in support of the plaint case while both the defendants deposed in opposing the claim. All the deeds including the trust deed of 1934, the rectification deed of 1941, the deed executed by Surabala appointing the defendant No.2 as the ultimate beneficiary in terms of the trust deed of the year 1934 as well as the sale-deed executed by the defendant No.2 in favour of the defendant No.1 were all marked as exhibits.
The learned Trial Judge, as indicated earlier, by the judgment and decree impugned herein, decreed the suit thereby holding that Pratul Chandra Boral executed and subsequently modified the deed of trust dated 18th April, 1934 with the knowledge and consent of the beneficiary, namely, Surabala, by supplementary deed of declaration and settlement dated 8th July, 1941 and as such, by virtue of the said deed of modification, the suit property became a Debattor property. The learned Trial Judge, therefore, held that the sale-deed executed by the defendant No.2 dated 16th December, 1992 in favour of the defendant No.1 was void, inoperative and by virtue of the said deed, the defendant No.1 acquired no title to the property.
Being dissatisfied, the defendants have come up with the present first appeal.
Mr. Dey, the learned advocate appearing on behalf of the appellants, has placed before us the first trust deed of 1934 pointing out that there was no provision of revocation of the said deed or any of the terms contained therein by the settlor. By relying upon the said deed, Mr. Dey contends that the subsequent deed executed by Pratul in the year 1941 modifying the terms of the earlier settlement was void as in the deed of 1941 the beneficiary of the original deed, namely, Surabala or any of the sons of Pratul, were not parties. Mr. Dey, therefore, contends that by the deed of 1941 the right already settled in favour of Surabala to nominate her beneficiary could not be taken away.
Mr. Dey next contends that the suit property cannot be a Debattor property in view of the fact that Surabala got mere right of enjoyment during her lifetime and in such a property, she could not create any lawful Debattor. Mr. Dey, therefore, contends that by her subsequent deed, she rightly appointed the defendant No.2 as her successor by virtue of her right conferred upon her by the trust deed of 1934. The defendant No.2, Mr. Dey contends, accordingly, was entitled to transfer the property to the defendant No.1 as full owner and the property cannot be a Debattor property.
None appears on behalf of the plaintiffs in spite of the service. Therefore, the only question that falls for determination in this appeal is whether on the basis of the aforesaid materials on record, the learned Trial Judge was justified in passing the decree declaring that the appellant No.1 acquired no title by virtue of the deed executed by the appellant No.2.
There is no dispute that in the original deed of trust executed by Pratul there was no right of revocation preserved with the settlor. In such a situation, the terms of the original deed of trust can be modified only in terms of Section 78 of the Indian Trust Act which is quoted below:
"78. Revocation of trust.--A trust created by will may be revoked at the pleasure of the testator.
A trust otherwise created can be revoked only--
(a) where all the beneficiaries are competent to contract--by their consent;
(b) where the trust has been declared by a non-testamentary instrument or by word of mouth--in exercise of a power of revocation expressly reserved to the author of the trust; or
(c) where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors--at the pleasure of the author of the trust."
The Supreme Court in the case of Sri Augusthayar Trust vs. C.I.T reported in (1998) 5 SCC 588 while dealing with a question whether the terms of or the purpose of a trust deed once executed can be changed in the absence of any clause of revocation by the trustee or the settlor, made the following observations:
"When the founders of the Trust have no power to alter or vary the terms of the Trust, a trustee appointed to manage the properties of the Trust for securing its object can under no circumstances be regarded as having such a power specially when the original deed dated 28-11-1941 does not bestow such power on him. Such a question also came up for consideration before the Madras High Court in Thanthi Trust v. ITO3. Dealing with the question whether the founder of a trust had power to revoke the same, at pp. 284-85, this Court observed as follows:
"It is well established that the subsequent acts and conduct of the founder of the trust cannot affect the trust if there has been already a complete dedication. (Vide Krishnaswamy Pillai v. Kothandarama Naicken4, Sunder Singh Mallah Singh Sanatan Dharam High School Trust v. Managing Committee5 and Gokuldass Jumnadoss and Co. v. Lakshminarasimhalu Chetti6. If a valid and complete dedication had taken place, there would be no power left in the founder to revoke and no assertion on his part or the subsequent conduct of himself or his descendants contrary to such dedication would have the effect of nullifying it. If the trust had been really and validly created, any deviation by the founder of the trust or the trustees from the declared purposes would amount only to a breach of trust and would not detract from the declaration of trust. Therefore, the subsequent conduct of the founder in dealing with the funds of the trust long after the creation of the trust may not put an end to the trust itself."
We are in full agreement with the principle stated in the aforesaid passage and we hold that the trustee had no authority or jurisdiction to execute a fresh trust deed and the document dated 1-7-1944 is of no consequence and is no more than a scrap of paper. The Trust as originally established by the deed dated 28-11-1941 remained unchanged or unaffected by the latter document dated 1-7-1944."
From the aforesaid observations of the Supreme Court it is, therefore, clear that the change of the original deed of trust made by the deed of the year 1941 executed by Pratul without the written consent of Surabala or the ultimate beneficiaries i.e. three or any of the three sons of Pratul was void. Even if we assume for the sake of argument that Surabala established a deity, the trust property could not be dedicated absolutely to the said deity without the consent in writing of all or any of the three sons of Pratul whom Surabala intended to choose as her successor. It appears from the deed executed by Surabala in favour of the defendant No.2 that she ignored the terms of the deed of the year 1941 executed by Pratul and made it clear that the deity that she established was not installed in the said house but in a different house.
Even if she installed any deity in the suit house, she having only limited life estate therein, the property could not absolutely devolve upon the deity and thus, by virtue of the deed executed by Surabala nominating the defendant No.2 as her successor after her death in terms of the trust deed of the year 1934, the defendant No.2 became absolute owner of the property after her death and by the subsequent sale-deed executed by the defendant No.2, he conveyed his absolute title in favour of the defendant No.1 who became the owner of the property.
We, therefore, find that the learned Trial Judge erred in law in holding that the defendant No.1 acquired no title to the suit property through the defendant No.2.
The judgement and the decree passed by the learned Trial Judge are thus set aside. We hold that the plaintiff had no right, title and interest in the suit property and the defendant No.1 is the absolute owner of the property. The suit is accordingly dismissed.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Tapan Kumar Dutt, J.)