Calcutta High Court
Chandni Maniyar vs Subhash Maniyar on 13 June, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 1 of 2022
In
CS 119 of 2024
(Old No. CS 111 of 2022)
Chandni Maniyar
Versus
Subhash Maniyar
Mr. Sabyasachi Chaudhury
Mr. Rajarshi Dutta
Mr. V.V.V. Sastry
Mr. Rahul Poddar
... For the plaintiff.
Mr. Dhruba Ghosh
Mr. Sakya Sen
Mr. Varun Kedia
Mr. Altamas Alim
... For the defendant.
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Hearing Concluded On : 26.04.2024
Judgment on : 13.06.2024
Krishna Rao, J.:
1. By an order dated 27th June, 2022, this Court had rejected the prayer of the plaintiff for grant of ad-interim injunction and directed the parties to exchange their affidavits with respect to the application for grant of temporary injunction. Now the parties have completed their pleadings and application for grant of temporary injunction is taken up for hearing.
2. The plaintiff is the widow of Om Prakash Maniyar who died on 17th June, 2021. The defendant is the son of the deceased through the first marriage of the deceased with Smt. Narbada Devi. During the life time, Om Prakash Maniyar by an Indenture dated 8th January 1998, as a settlor created a Trust in the name of "Maniyar Charitable Trust". The plaintiff along with her husband, Om Prakash Maniyar were the joint Trustees of the said Trust. The Trust Deed provides that the number of Trustees shall not be less than 2 (two) and shall not be more than 5 (five) at any point of time. Clause 28 of the Indenture provides that the surviving or continuing Trustee may continue to act notwithstanding any vacancy in the Trust Board. If the number of Trustees fall below the fixed number of the Trustees by the said deed, in that event the surviving/continuing Trustee shall be entitled to appoint new Trustee/Trustees.
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3. The plaintiff has received information from the banker of the Trust i.e. Punjab National Bank, Chittaranjan Avenue Branch that the defendant by a letter dated 5th August, 2021, is claiming to be a Trustee of the said Trust and the authorized signatory of the bank account of the Trust. It was further informed to the plaintiff that the defendant has issued the said letter on the basis of the resolution dated 5th July, 2021 signed by the plaintiff.
4. The plaintiff did not hold any meeting of the Board of the Trustees on 5th July, 2021 and has not signed any resolution, the plaintiff realize that her signature was forged and fabricated by the defendant and accordingly, the plaintiff has sent a letter to the Chief Manager of Punjab National Bank on 1st October, 2021, informing that the plaintiff is the sole surviving Trustee of the Trust and has not appointed any Trustee. The plaintiff has also lodged a complaint with the Shakespeare Sarani Police Station. The Police has registered a case being FIR No. 193 of 2021 dated 22nd November, 2021 for the offence under Section 120B/419/420/467/468/471 of the Indian Penal Code. During investigation of the case, the Police has seized documents and on completion of investigation, the police has submitted a closure report.
5. Mr. Sabyasachi Chaudhury, Learned Advocate representing the plaintiff submits that the police has submitted closure report in the criminal case initiated against the defendant only on the basis of the opinion of the handwriting expert of QDEB, CID, WB wherein it is revealed that the signatures in the said two resolutions dated 5th July, 2021 4 contained genuine signature of the plaintiff and the same was authored by the plaintiff herself.
6. Mr. Chaudhury submitted that the report on the basis of which the police has submitted closure report cannot be relied upon as the plaintiff has already filed protest application against the final report and prayed for further investigation and the said application is pending before the Learned Magistrate.
7. Mr. Chaudhury submitted that till date the police has not seized original documents and only on the basis of the certified copy of the resolutions, the handwriting expert came to conclusion that the signature appearing in the resolutions are of the plaintiff.
8. Mr. Choudhury submitted that the defendant has relied upon the alleged documents and tried to include his name in the account of the Trust and to allow him to operate the bank account but the police has not seized the said documents from the defendant. He submits that from the seizure list prepared by the police, it is clear that the documents were seized from the bank and not from the defendant.
9. Mr. Chaudhury in support of his submissions has relied upon the judgment reported in (2019) 14 SCC 220 (Chennadi Jalapathi Reddy
-vs- Baddam Pratapa Reddy (Dead) Through Legal Representatives & Another) and submitted that it is settled law that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. He submits that it is also 5 settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case.
10. Mr. Chaudhury submitted that the husband of the plaintiff died on 17th June, 2021 and thus there is no occasion to hold meeting on 5th July, 2021 i.e. within 20 days from the date of the death of her husband. He submits that the defendant has not shown any documents or evidence that there was an urgency to hold meeting and to pass resolution within 20 days from the date of death of the husband of the plaintiff. He submits that if presuming that there was an urgency and the resolution was passed then why the plaintiff has not forwarded the said resolution to the bank and why the defendant has forwarded the said resolution on 5th August, 2021 i.e. after one month from the date of the alleged meeting.
11. Mr. Chaudhury submitted that the as per Clause 36 of the Trust Deed, all the meetings of the trustees shall be held at the office of the Trust or at other such place, as the Chairman of the Trust shall decide from time to time but in the present case, the meeting was not held at the office of the Trust or no documents were produced that any notices were issued for the said meeting or any decision was taken to hold meeting at 14 Canal Street, Kolkata than at 19, Chandni Chowk Street, Kolkata.
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12. Mr. Chaudhury submitted that during the life time, the deceased has executed a Will dated 3rd August, 2020, appointing the plaintiff as executrix of his last Will and Testament. In the said Will, it is recorded that 45% of the profits to be receivable or to be earned from the 13 companies where the testator was a director or a shareholder have been bequeathed in favour of the defendant and his another son Dheeraj Maniyar and the remaining 10% of the share of the profits from the companies have been bequeathed to the Trust.
13. Mr. Chaudhury submitted that in the Will it is also mentioned that his two sons shall jointly, along with another existing Trustee (Plaintiff herein) manage all the matters of the Trust and is subject to the surviving Trustee exercising her right of appointing a new Trustee under Clause 28 of the Trust Deed and probate of the said Will dated 3rd August, 2020 being granted. He submits that if the two sons did not agree or act as per directions of the testator, then none of the sons of the testator shall be entitled to their respective shares in the profit of the 13 companies and the profits shall go to the Trust.
14. Mr. Chaudhury submitted that after the death of the testator, the plaintiff has already filed a probate application being PLA No. 327 of 2021 and in the said proceeding, the plaintiff has also filed an application for appointment of Administrator Pendent lite and the defendant is contesting the said application and in the said proceeding, the defendant has also served cause papers of another Testamentary proceeding initiated by the defendant for grant of probate of the alleged 7 Will and Testament dated 30th January, 2018. He submits that both the proceedings are pending before the Testamentary Court.
15. Mr. Dhruba Ghosh, Learned Senior Advocate representing the defendant submitted that as on date of the death of Om Prakash Maniyar, there were only two trustees being the Plaintiff and Om Prakash Maniyar. After the death of Om Prakash Maniyar, a vacancy was created in the Trust and as per the Trust Deed, a new trustee was to be appointed.
16. Mr. Ghosh submitted that the plaintiff was desirous of appointing the defendant as a trustee of the Trust to fill up the vacancy as upon the death of Om Prakash Maniyar, the Trust become unworkable. He submits that the plaintiff being the surviving and continuing trustee thought it to be fit to appoint the defendant as a trustee so that the Trust could function and in accordance with the clauses of the Trust Deed, the defendant was appointed as a trustee by way of a resolution dated 5th July, 2021 and the defendant was also appointed as signatory of the bank account of the Trust maintained in the Punjab National Bank.
17. Mr. Ghosh submits that the after the resolution, the defendant has communicated the same to the bank for taking necessary action to include the name of the defendant as an authorized signatory of the bank account of the Trust.
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18. Mr. Ghosh submitted that on 26th August, 2021, the defendant had received a letter form M/s Khaitan & Co. as an advocate of the plaintiff calling upon the defendant to be present in the meeting to be held on 28th August, 2021 with respect to the alleged Will dated 3rd August, 2020. On receipt of the letter, the defendant had sent a reply by denying the validity and genuineness of the alleged Will. Mr. Ghosh submitted that the defendant had already filed a probate proceeding with respect of the Will dated 30th January, 2018 being PLA No. 259 of 2021 in the month of August, 2021 and after filing of the said proceeding, the relationship between the plaintiff and the defendant deteriorated and after thought, the plaintiff has filed the instant suit.
19. Mr. Ghosh submitted that the defendant has received a notice from the Police Authority and several documents have been seized by the police from the defendant with respect to the said criminal case initiated by the plaintiff against the defendant and proper investigation was also conducted. After getting report from the Hand Writing Expert, the police has submitted final report against the complaint initiated against the defendant on the ground that the signature appearing in the resolution are the genuine signature of the plaintiff.
20. Mr. Ghosh submitted that the plaintiff is not capable of managing the affairs of the Trust thus appointed the defendant as the trustee and allowed the defendant to operate the bank account of the Trust but at the instance of her aids having vested interests has raised the dispute of appointment of the defendant as trustee by making false allegation of 9 fraud. He submits that the plaintiff cannot be allowed to misappropriate the funds of the Trust.
21. Heard the Learned Counsel for the respective parties, perused the materials on record and the judgment relied upon by the Counsel for the plaintiff. The plaintiff has filed the suit for declaration of alleged resolution dated 5th July, 2021 as a forged and fabricated document and to cancel the alleged resolution. The plaintiff has also prayed for permanent injunction and perpetual injunction.
22. In the present application, the plaintiff has prayed for an order of injunction restraining the defendant form taking any steps or further steps in relation to the affairs, assets, properties and bank accounts of the Trust.
23. The dispute arose when the plaintiff came to know about the communication made by the defendant to the Punjab National Bank, Chitranjan Avenue Branch, Kolkata, for allowing the defendant to be an authorized signatory of the account of the Trust in terms of the alleged resolution dated 5th July, 2021. The entire case of the plaintiff, either in the present application or in the suit is based upon the resolution dated 5th July, 2021. The plaintiff says that the plaintiff has not called any meeting and the plaintiff has not signed any resolution by appointing the defendant as a trustee by allowing the defendant to be the signatory of the bank account of the Trust.
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24. Other than filling of the suit, the plaintiff has also made a complaint before the concerned police authority against the defendant on the allegation that the signature appearing in the resolution dated 5th July, 2021 is not of the plaintiff and the defendant had forged and interpolated the signature of the plaintiff. During investigation, the Investigating Agency has seized several documents from the defendant as well as from the bank authorities including the certified copies of the resolutions. The investigating agencies have also obtained admitted signature of the plaintiff. On receipt of report of the Hand Writing Expert, it was found that the signature appearing in the resolutions are genuine and the police has filed closure report in the criminal proceedings.
25. The plaintiff in her affidavit-in-reply has annexed the Naraji petition along with all documents seized by the police during investigation and in the said documents, there is another document i.e. another Resolution dated 5th July, 2021 wherein the plaintiff has appointed the defendant as Board of Trustee but the plaintiff has not challenged the said resolution but the police has sent the said resolution for getting report from hand writing expert and as per report both resolution are genuine.
26. Now the plaintiff says that the expert evidence is a weak type of evidence and not substantive in nature and thus only on the basis of the report it cannot be said that the resolutions are genuine as the plaintiff herself is saying that the signature appearing in the resolutions 11 are not of the plaintiff and there are other circumstances which proves that it was not possible for the plaintiff to call for meeting of the Trust just within 20 days of the death of her husband and no notice of meeting is on record and the address where the alleged meeting was held is not address of the Trust. It is also that no original document was produced before the handwriting expert.
27. In the case of Chennadi Jalapathi Reddy (supra), the Hon'ble Supreme Court held that:
"10. By now, it is well settled that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra and Ram Bharosey v. State of Uttar Pradesh, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, Magan Bihari Lal v. State of Punjab, and S. Gopal Reddy v. State of A. P.
11. We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee (supra), where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the Court chose to disregard the testimony of the handwriting expert as to the disputed signature of the testator of a Will, finding such evidence to be inconclusive. The Court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the Will.
12. On the other hand, in Murari Lal v. State of Madhya Pradesh, this Court emphasised that reliance on expert testimony cannot be precluded 12 merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after considering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Court noted that Section 46 of the Indian Evidence Act, 1872 (hereinafter "the Evidence Act") expressly makes opinion evidence open to challenge on facts. In Alamgir v. State (NCT, Delhi), without referring to Section 46 of the Evidence Act, this Court reiterated the observations in Murari Lal and stressed that the Court must exercise due care and caution while determining the creditworthiness of expert evidence.
13. In our considered opinion, the decisions in Murari Lal and Alamgir strengthen the proposition that it is the duty of the Court to approach opinion evidence cautiously while determining its reliability and that the Court may seek independent corroboration of such evidence as a general rule of prudence. Clearly, these observations in Murari Lal and Alamgir do not go against the proposition stated in Shashi Kumar Banerjee that the evidence of a handwriting expert should rarely be given precedence over substantive evidence."
28. In the present case the plaintiff is praying for temporary injunction against the defendant from taking any steps in terms of the disputed resolution. The Police has collected handwriting expert's report which is against the plaintiff. It is settled law that the Court must be cautious while evaluating expert evidence. This Court at present deciding the interlocutory application for grant of temporary injunction and has no occasion to evaluate the expert evidence. Whether the expert report is acceptable or not is the matter of trial. It would not be appropriate for 13 this Court to come to the conclusion with regard to the Handwriting Expert's report at this stage.
29. As per Clause 28 of the Trust Deed, the surviving or continuing Trustee may continue to act notwithstanding any vacancy in their Trust Board and also that if the number of Trustees fixed by this present in that event the surviving/continuing Trustees shall be entitled to appoint new Trustee/Trustees.
Clause 26 of the Deed provides that the number of Trustees shall not be less than two or more than five.
Both parties relied upon Clause 28 of the Deed. The plaintiff says that she can continue to act as Trustee alone after the death of her husband. The defendant says that in terms of the said clause, the plaintiff appointed the defendant as Trustee. He also says that as per Clause 26, number of Trustees shall not be less than two and thus he was appointed as second Trustee after the death of his father.
30. This Court finds that both the parties have initiated probate proceedings with respect to two Wills. The plaintiff is denying with respect to execution of the alleged resolution dated 5th July, 2021 and the said resolution is subject matter of the suit. If at this stage, the interim order as prayed for by the plaintiff is allowed, the same would amount to grant of main relief prayed for in the suit. 14
31. Mr. Ghosh, Learned Senior Counsel for the defendant submits that if the defendant is being restrained from operating the bank account, then the plaintiff should also be restrained from operating the account of the Trust till the disposal of the suit.
32. Considering the materials on record, this Court finds that the account belongs to the Trust. There is a dispute of Board of Trustees. The plaintiff denies the resolution and the defendant is claiming benefit of the resolution. The resolution is the subject matter of the suit. In view of the above, both the parties are restrained from withdrawal of any amount from the account of the Trust without the specific permission from this Court till the disposal of the suit.
It is made clear that any amount which would require to be deposited in the account of the Trust, the said amount can be deposited by the plaintiff.
33. G.A No. 1 of 2022 is disposed of.
(Krishna Rao, J.)