Calcutta High Court (Appellete Side)
Sabita Banerjee vs Dr. Mahendra Yashwant Bal & Ors on 15 May, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya.
IN THE HIGH COURT AT CALCUTTA
APPEAL FROM ORIGINAL DECREE
Appellate Side
Present
The Hon'ble Mr. Justice Jyotirmay Bhattacharya.
And
The Hon'ble Mr. Justice Debi Prosad Dey.
F. A. NO. 287 of 2010
With
CAN 7256 of 2014
Sabita Banerjee
Versus
Dr. Mahendra Yashwant Bal & Ors.
For the Appellant : Mr. Hirak Mitra, Sr. Adv.,
: Mr. Koushik Dey, Adv.
For the Respondent Nos 1‐3 : Mr. Adil Rashid, Adv.
For the respondent No.4 : Mr. Asit Baran Routh, Adv. For the respondent Nos. 5‐7 : Mr. Amitava Das, Adv., : Mr. Ramesh Chandra Pal, Adv. Heard on : 09.04.2015, 28.04.2015, 29.04.2015, 04.05.2015, 05.05.2015 & 06.05.2015 Judgment on : 15th May, 2015. Jyotirmay Bhattacharya, J.
This First Appeal is directed against the judgment and decree passed by the learned Judge 4th Bench City Civil Court at Calcutta on 24th February, 2010 in Title Suit No.34 of 1996 at the instance of the plaintiff/appellant.
The plaintiff's suit for cancellation of five (5) deeds and for declaration that eviction decree passed by the Hon'ble High Court at Calcutta in appeal reversing judgment of the learned Trial Judge which was subsequently affirmed in appeal by the Hon'ble Supreme Court is not binding upon the plaintiff. The plaintiff has also sought for injunction so that her possession in the suit premises is not disturbed and the eviction decree cannot be executed against her.
The said suit was dismissed on contest on the ground of bar of limitation. Hence the instant appeal was filed.
Let us now give the short background of this litigation which is necessary for proper appreciation of the dispute involved in this appeal.
The plaintiff is the daughter of late Lal Behari Mullick. The defendant No.5 is her mother. The defendant Nos.1 & 2 are the sons of Dr.Yashwant Waman Bal. The defendant No.3 was the wife of Dr. Bal. Defendant No.4 was the daughter of Dr. Bal. Dr. Bal died intestate on 8th June, 1969 leaving behind the defendant Nos.1-4 as his heirs and legal representatives.
Lal Behari Mullick, the father of the plaintiff died intestate on 16th December, 1970 leaving behind his widow, namely, defendant No.5 and his daughter, namely, plaintiff herein. The plaintiff was born on 18th June, 1957.
Earlier the defendant Nos.1‐4 filed a suit being Title Suit No.704 in the City Civil Court at Calcutta against the plaintiff and the defendant No.5 praying for recovery of khas possession of the 1st floor, 2nd floor and a portion of the ground floor of premises No.266‐A Chittaranjan Avenue, Calcutta 700006, inter alia, on the ground of expiry of the lease on the death of Lal Behari Mullick (lessee). It was stated therein the Lal Behari Mullick was the lessee under Dr. Bal for his lifetime. The said lease was executed on 5th March, 1963. Subsequently, another lease was executed between them on 11th July, 1966 for modification of some of the terms of the earlier lease deed. The subsequent lease deed which was executed on 11th July, 1966 expired with the death of Lal Behari Mullick on 16th December, 1970. Since the heirs of Lal Behari Mullick refused to vacate the demised premises after expiry of the lease period, Dr. Bal filed the said suit.
The plaintiff was aged about 16 years when the suit was filed. The defendant No.5 being the mother of the plaintiff herein contested the same for herself and also on behalf of her minor daughter, namely, the plaintiff. The said suit was dismissed by the learned Trial Judge on contest on 16th January, 1973.
Being aggrieved by the said judgment and decree passed by the learned Trial Judge, the defendant Nos.1‐4 preferred an appeal before this Hon'ble Court. Ultimately the said appeal was allowed by this Hon'ble Court. The judgment and decree of the learned Trial Judge was set aside. A decree for eviction of the plaintiff and the defendant No.5 was passed in the said appeal on 20th December, 1977.
Challenging the said decree of this High Court at Calcutta an appeal was preferred before the Hon'ble Supreme Court by the plaintiff and the defendant No.5 herein. By that time the plaintiff became major. As such she filed the said appeal herself along with her mother. The said appeal was also dismissed and the decree of eviction passed by this Hon'ble Court was affirmed by the Hon'ble Supreme Court.
The plaintiff claims that she had no knowledge about the aforesaid proceedings. She further claims that since her relationship with her mother was strained since the time of marriage on 27th May, 1979 her mother did not disclose anything about the said suit to her at any point of time. It was further alleged that on or about 22nd December, 1995 an altercation took place between the plaintiff and her mother viz., the defendant No.5, who disclosed for the first time in December, 1995 that defendant Nos. 1‐4 will soon evict the plaintiff from premises No.266‐A, Chittaranjan Avenue. After hearing this from the defendant No.5, the plaintiff became suspicious and snatched some papers from her mother on 24th December, 1995 and then she met her learned Advocate Sri Subrata Ray who after pursuing those papers apprised the plaintiff for the first time about the following facts:‐
(i) Her father Lal Behari Mullick was the owner of two premises being premises No.266‐A and premises No.266‐B, Chittaranjan Avenue, Calcutta.
(ii) The said Lal Behari Mullick executed a trust deed on 18th July, 1955, appointing four trustees including himself therein. As per the said trust deed, Lal Behari Mullick would be the beneficiary for life and after his death his wife, the defendant No.5 would be the beneficiary and after the death of both Lal Behari Mullick and his wife, if he leaves any son or daughter, he/she/they would be the beneficiary until the trust comes to an end. It was also provided in the said trust deed that trust will come to an end after 19 years after the death of Lal Behari Mullick. Be it mentioned here that at the time of execution of the said trust deed Lal Behari Mullick had no issue. His daughter was born on 18th June, 1957 i.e., almost two years after the said deed was executed.
(iii) Subsequently, on 5th March, 1963 two deeds were executed by the said Lal Behari Mullick. By one of such deeds (Ext.3) he cancelled the trust deeds dated 18th July, 1955. By another deed (Ext.4) he sold and transferred the premises No.266‐A Chittaranjan Avenue in favour of Dr. Yashwant Waman Bal.
(iv) On the same date a lease deed was executed by Dr. Bal, whereby he leased out the said premises No.266‐A, Chittaranjan Avenue to the said Lal Behari Mullick during his life time.
(v) Subsequently, another deed was executed by Dr. Bal on 11th July, 1966 by amending some of the terms of the said lease deed.
(vi) While executing the deed of cancellation and/or revocation of the trust deed on 5th March, 1963, Lal Behari Mullick mentioned in the said deed that he had no issue, though his daughter, namely, the plaintiff was born on 18th June, 1957 and she was seven years old at that time.
(vii) These facts relating to execution of the trust deed by Lal Behari Mullick, cancellation thereof by subsequent deed and transfer of the said property by Lal Behari Mullick in favour of Dr. Bal were not disclosed by the defendant Nos. 1‐4 at any stage of the eviction proceeding right from the date of filing the suit in the City Civil Court upto the date of disposal of the appeal by the Hon'ble Supreme Court. They also never disclosed that Lal Behari Mullick was the owner of the two premises being premises No.226‐A & 266‐B, Chittaranjan Avenue, Calcutta. The fact that the plaintiff was also a beneficiary under the trust deed was not disclosed by the defendant Nos. 1‐4 and thus, the defendant Nos. 1‐4 in collusion with the defendant No.5 obtained the said eviction decree against the plaintiff by suppressing those facts and thereby deprived her of her right title and interest in those two premises.
(viii) The plaintiff subsequently came to know that Dr. Bal was a tenant under her father in respect of premises No.266‐B, Chittaranjan Avenue and he used to treat him at the time of his illness and the said Dr. Bal by applying force compelled her father to sign the above deeds without allowing her father to know about the contents of the said deed. The plaintiff claimed that she detected such fraud only on 24th December, 1995 after getting some papers from her mother and after holding consultation with her advocate.
(ix) The plaintiff claims that since Lal Behari Mullick did not reserve his power to cancel the said deed of trust, cancellation of the said deed of trust by Lal Behari Mullick without obtaining consent from all the beneficiaries under the trust became void and as such all the subsequent transactions made by him concerning those premises are void and illegal and are thus, not binding upon the plaintiff. Hence, the present suit was filed.
The defendant Nos. 1‐4 contested the said suit by filing written statement denying the material allegations of the plaint and contending, inter alia, that the suit was not maintainable as it was barred by limitation. The allegations of fraud made out by the plaintiff in the plaint were all denied. It was alleged that to avoid eviction from the suit premises, the plaintiff in collusion with her mother, the defendant No.5 filed the said suit after execution proceeding was initiated by the decree holder for recovery of the possession of the suit premises from the plaintiff and the defendant No.5. It was further alleged therein that both the plaintiff and the defendant No.5 contested the said eviction proceeding jointly all throughout starting from the Trial Court upto the Hon'ble Supreme Court and after being defeated ultimately before the Hon'ble Supreme Court, they filed the instant suit to frustrate eviction proceeding. They also claimed that the relationship between the plaintiff and the defendant No.5 was very cordial. They were living together in the suit premises and even after the plaintiff's marriage, the plaintiff continued to reside with her husband in the suit premises. It was also alleged that the defendant No.5 being the mother of the plaintiff was also a confirming party in the sale deed executed by her husband, namely, Lal Behari Mullick in favour of Dr. Bal. They thus, denied the allegations of fraud made out by the plaintiff in the plaint and the discovery of such fraud in December, 1975 as alleged or at all. They prayed for dismissal of the suit for want of cause of action.
The defendant No.5 being the mother of the plaintiff filed a written statement supporting the allegations made out by the plaintiff in the plaint.
The subsequent transferee of the suit premises from Dr. Bal were added as defendant Nos. 6‐8 in the said suit. They also filed written statement denying the material allegations made out in the plaint almost in the same line as was done by the defendant Nos. 1,2 &4 in their written statement. They claimed that they were bona fide transferees for value without notice and as such their title in the property cannot be affected in any way. They also prayed for dismissal of the said suit.
The parties led evidence in support of their respective claims. The learned Trial Judge, after considering the pleadings of the parties and the evidence, both oral and documentary adduced by the respective parties, ultimately dismissed the said suit by holding, inter alia, that the suit is barred by limitation. The learned Trial Judge held that the plaintiff admittedly attained the age of majority on 18th June, 1975, and since the suit was not filed within three years from the date of attainment of her majority, the suit is barred by limitation as per the provision contained in Article 59 of the Limitation Act. The learned Trial Judge disbelieved that the plaintiff first came to know about the alleged fraud pleaded in the plaint in December, 1995. After scanning the evidence of parties, the learned Trial Judge found that she was all throughout in good terms with her mother. The learned Trial Judge also found that the plaintiff's marriage was an arranged marriage and even after her marriage she continued to stay with her husband in the suit premises with her mother and they contested the eviction suit jointly all throughout right from the Trial Court upto the Hon'ble Supreme Court. As such the learned Trial Judge disbelieved that the alleged fraud was discovered by the plaintiff in December, 1995 when she snatched some papers from her mother during her altercation with her mother. Thus, the suit was dismissed due to bar of limitation.
The legality and/or validity of the said judgment and decree of the learned Trial Judge is under challenge in this appeal.
Let us now consider as to how far the learned Trial Judge was justified in dismissing the said suit in the facts of the instant case.
We find that it is the rarest of rare cases where the plaintiff herself prays for dismissal of the suit on the ground of its maintainability. According to Mr. Mitra, learned Senior Counsel, appearing for the plaintiff/ appellant, the suit was barred under provision of Section 47 of the Civil Procedure Code and he argued this point at length for days together even though such objection regarding maintainability of such suit on the bar of Section 47 of the Civil Procedure Code was virtually abandoned by the defendants in course of trial of the said suit.
Mr. Mitra, contended that legality of the decree as to its voidness can be challenged by any of the parties to the suit by way of an application under Section 47 of the Civil Procedure Code. By referring to the provision contained in Section 47 of the Civil procedure Code, he pointed out that separate suit is not maintainable for challenging the legality of the decree which was obtained by the decree holder by exercising fraud upon Court.
Referring to the pleadings and/or evidence of the plaintiff he pointed out that the defendant Nos. 1‐4 never disclosed at any stage of the trial of the suit starting from the Trial Court upto the Hon'ble Supreme Court about the facts, viz., the ownership of Lal Behari Mullick and execution of the deed of trust by him for the benefit of himself during his lifetime and thereafter for his wife during her lifetime and thereafter for his daughter until the trust comes to an end on fulfilment of the object of trust and cancellation of the said trust deed by executing a deed of cancellation by Lal Behari Mullick by mentioning therein that he had no daughter, though her daughter, viz., the plaintiff herein was born by that time. According to him these facts had a great bearing on the issues involved in the eviction proceeding and for non‐disclosure of these facts the trial of the said suit was vitiated. He thus contended that the decree for eviction which was so obtained by the said defendant Nos. 1‐4 by suppression of the aforesaid material facts amounting to fraud exercised upon Court, is a void decree and the executibility of such decree can only be challenged in a proceeding under Section 47 of the Civil Procedure Code and not by a separate suit.
He contended that the beneficial interest which was vested in the plaintiff by virtue of the said deed executed by her father still remains unaffected notwithstanding the deed of cancellation was executed by her father and transactions which were made between him and Dr. Bal Subsequently. To strengthen his argument he referred to various provisions of the contract Act as well as the Indian Trust Act. Firstly, he referred to Section 11 of the Contract Act wherein it is provided as to who are competent to contract. By referring to the said provision, he contended that since the minors are not competent to contract as per the said provision of the Contract Act, the trust deed could not have been revoked by her father without the consent of the plaintiff who was a beneficiary under the trust and the plaintiff being admittedly a minor beneficiary under the said trust, at the time of execution of the cancellation deed by her father, namely, Lal Behari Mullick was incapable of giving her consent for such cancellation at the material time. By referring to Section 23 of the Contract Act he contended that when right to cancel and/or revoke the trust deed was not reserved by the settler while executing the deed of trust, cancellation of such trust deed by executing a deed of cancellation by one of the trustees without the consent of all the beneficiaries being forbidden law, such cancellation of the trust deed became void under Section 23 of the Contract Act.
By referring to Section 11 of the Indian Trust Act, 1882 he contended that when the beneficiary was a minor and thus, was incompetent to contract, Lal Behari Mullick ought to have obtained permission from the Principal Civil Court of Original Jurisdiction before executing the said cancellation deed. He contended that since no such consent for cancellation of such trust deed having been obtained Lal Behari Mullick from the Principal Civil Court of Original Jurisdiction, so far as the plaintiff was concerned, the cancellation deed became inoperative inasmuch as such cancellation without the Court's consent was opposed to the provision contained in Section 14 of the Indian Trust Act which provides that trustee must not for himself or another set up or aid any title to the trust property adverse to the interest of beneficiary. He also argued that cancellation of such trust deed is also void as such cancellation was made by making a fraudulent misrepresentation of the fact that he had no daughter though he had a daughter who was even years old at the time of execution of the cancellation deed. In the cancellation deed he stated that he had no issue which is patently wrong and incorrect statement made by them.
By referring to Section 46 of the Indian Trust Act he submitted that Lal Behari Mullick who accepted the trust as a trustee could not have renounced the trusteeship except in accordance with any of the modes as prescribed in Section 46 of the said Act. These are the modes of renouncement prescribed under Section 46 thereof:‐
(a) with the permission of Principal Civil Court of original jurisdiction or
(b) if the beneficiary is competent to contract with his consent or
(c) by virtue of a special power in the instrument of trust.
He has also read the relevant provisions of the trust deed to show that power of revocation and/or cancellation of the trust deed by the settler was not reserved in the trust deed itself. As such, according to him, the trust deed was not validly revoked and/or cancelled by the settler and/or the trustee inasmuch as such cancellation was not made in conformity with any of the modes as prescribed under Section 46 of the Indian Trust Act. By referring to the provision contained in Section 70 and Section 71 of the Indian Trust Act, he also contended that Lal Behari Mullick was not discharged from his office of trusteeship in conformity of any of the modes as prescribed under Section 71 of the said Act. According to him, the said Lal Behari Mullick, remained a trustee under the Trust Act during his lifetime and so long as he was alive he was obliged to discharge the obligation under the trust deed as trustee as the cancellation and/or revocation of such trust deed was never made by following any of the modes as prescribed under Section 78 of the Trust Act.
By referring to the aforesaid provisions of the Contract Act as well as the Indian Trust Act Mr. Mitra, thus concluded by submitting that the trust which was created by Lal Behari Mullick by the deed of trust dated 18th July, 1955 remained unaffected notwithstanding execution of the deed of cancellation of the trust deed by Lal Behari Mullick and as such the subsequent transactions made between Lal Behari Mullick and Dr. Bal were all illegal and void. Mr. Mitra, thus, contended that since cancellation of the trust deed was void Dr. Bal did not acquire any title in respect of the suit property by virtue of his purchase thereof from Lal Behari Mullick and identically the defendant Nos.6 ‐ 8 being the subsequent transferees from Dr. Bal did not acquire any title in the suit property.
Mr. Mitra, thus, contended that had these facts regarding execution of the trust deed and the cancellation thereof been disclosed before the Courts in connection with the eviction proceeding then the Courts would not have passed any decree for eviction in favour of the defendant Nos. 1‐4. He thus precisely argued that since such decree of eviction was obtained by the defendant Nos. 1‐4 by suppressing those material facts before the learned Trial Judge amounting to exercise of fraud upon Court in obtaining such eviction decree, such eviction decree became void and inoperative and thus is not executable. According to him executibility of such eviction decree can only be challenged in the execution proceeding by way of an application under Section 47 of the Civil Procedure Code and not by a separate suit. In support of such submission that the decree obtained by Commission of fraud upon Court is a nullity, he has relied upon the following decisions of the Hon'ble Supreme Court:‐
1. In the case of Kiran singh v. Chaman Paswan & Ors. reported in AIR 1954 SC 340.
2. In the case of Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee & Anr. reported in 1969 SC 823.
3. In the case of Dhurandhra Prasad Singh v. Jai Prakash University reported in AIR 2001 SC 2552.
4. In the case of Santosh v. Jagat Ram reported in 2010(1)CLJ(SC) 155. Relying upon the aforesaid decisions of the Hon'ble Supreme Court he supported his submission that deed of cancellation of the trust deed executed by Lal Behari Mullick was a void deed and as such trust deed remained unaffected notwithstanding execution of the deed of cancellation of the trust deed by Lal Behari Mullick. Ultimately by referring to another decision of the Hon'ble Supreme Court in the case of S.P Chengal Varaya Naidu (dead) by LRS. v. Jagannath (dead) by LRS & Ors. reported in (1994) 1 SCC 1 he contended that the legality of such decree can be questioned even in collateral proceeding whenever right to possession of beneficiary under the trust will be threatened.
Mr. Mitra thus, contended that since the eviction decree has now been put into execution, the plaintiff can very well challenge the legality of such eviction decree under Section 47 of the Civil Procedure Code in execution proceeding. According to him, the suit which was so filed is barred under Section 47 of the Civil Procedure Code as section 47 of Civil Procedure Code does not permit adjudication of any dispute relating to execution, discharge of satisfaction of such decree by a separate suit. Let us now consider the acceptability of such argument of Mr. Mitra, relating to maintainability of the suit due to bar of Section 47 CPC in the facts of the instant case In order to appreciate the submission of Mr. Mitra, regarding maintainability of the suit due to the bar of Section 47 of the Code of Civil Procedure we feel it necessary to consider, first of all, the legality of the eviction decree which was passed in the eviction suit filed by the defendant Nos. 1‐4 against the plaintiff herein. In other words, we will have to consider as to whether the decree of eviction which was obtained by the defendant Nos.1‐4 in the eviction suit became void as it was vitiated by Commission of the alleged fraud upon Court. In this regard, we like to mention here that in ordinary suit for eviction between landlord and tenant, ownership of the landlord cannot be made an issue in the suit as the tenant cannot question the title of the landlord as per Section 116 of the Indian Evidence Act. Tenancy is a mater of contract between the landlord and tenant. In the present case a tenancy was created by Dr. Bal (landlord) in favour of the Lal Behari Mullick (tenant) during lifetime of the tenant with a stipulation in the lease deed that within three months after the death of Lal Behari Mullick, the heirs and/or his legal representatives will have to deliver vacant and peaceful possession of the said tenancy to the landlord. Lal Behari Mullick died on 16th December, 1970. His heirs and legal representatives did not vacate the said premises and failed to deliver vacant possession thereof to the landlord after expiry of three months after the death of Lal Behari Mullick. Hence the said eviction suit was filed by legal heirs of Dr. Bal, namely, defendant Nos. 1‐4 herein for recovery of possession of the suit premises from the plaintiff being the daughter of Lal Behari Mullick and his widow, namely, defendant No.5. Thus this was a suit for eviction based on the contractual rights of the parties. This was not a suit for eviction by the owner of the premises against a trespasser, based on owner's title in the property. In such a suit for eviction which is not a suit for eviction based on title of the landlord, issue relating to the landlord's ownership was a foreign consideration and as such if in such a suit, the plaintiff omits to plead the history as to how he acquired title in the suit property, omission to plead such unnecessary pleading does not amount to Commission of fraud upon Court. Had it been a suit for eviction based on title of the plaintiff, then plaintiff ought to have pleaded the details of the history of his title and if any decree was obtained by the decree holder by suppressing material facts relating to his title, such decree could have been held to be vitiated by fraud amounting to nullity and the legality and/or executibility of such a decree could have been challenged in the execution proceeding by filling objection under Section 47 of the Civil procedure Code. Since we have mentioned hereinabove that this is not a suit for eviction filed by the plaintiff based on his title, rather since it is a suit based on the contractual rights of the parties relating to creation of a tenancy by the landlord in favour of his tenant, non‐ disclosure of the history of title of Dr. Bal (landlord) cannot vitiate the decree of eviction particularly when creation of tenancy by Dr. Bal in favour of Lal Behari Mullick admitted by the successor of Lal Behari Mullick, in the eviction suit.
Mr. Mitra, however, contended that since Section 116 of the Evidence Act does not preclude the tenant from challenging the title of the landlord not being the inducting landlord, the plaintiff could have very well challenged the title of Dr. Bal and also could have established that no relationship of landlord and tenant was created by virtue of deed of lease executed between Dr. Bal and Sri Lal Behari Mullick. In our view such contention is absolutely unsustainable as we have already indicated above that issue relating to the title of the landlord in an eviction suit is a foreign issue when such suit is based on contract and not on title of the plaintiff and the relationship of landlord and tenant between the parties were not disputed. Thus, we have no hesitation to conclude that the eviction decree is a valid decree and the excitability of the said decree cannot be challenged under Section 47 of the Code of Civil Procedure. As such we hold that the present suit cannot be held to be barred under the provision of Section 47 of the Civil Procedure Code. In this regard we like to mention here that we have considered all the aforesaid decisions of the Hon'ble Supreme Court cited by Mr. Mitra, and we find that the principles laid down therein are not attracted in the facts of the present case as facts of the present case are completely different from the cases before the Hon'ble Supreme Court in these decisions.
In this background let us now consider the objection regarding maintainability of the said suit due to the bar of limitation. According to Mr. Das, suit of this nature where the plaintiff prays for setting aside the decree passed by the Civil Court, Article 59 of the Limitation Act is attracted. He pointed out that limitation for filing the suit for cancellation and/or setting aside of the decree is three years under the said article and the starting point of limitation will be the date when the facts entitling the plaintiff to have the decree set aside first became known to him. According to him suit is barred under Article 59 of the Limitation Act as the plaintiff has not filed the said suit within the prescribed period.
In fact, the date of knowledge of the plaintiff about the alleged fraud, is a material consideration for ascertaining the starting point of limitation under Article 59 of the Limitation Act.
Let us now try to ascertain as to whether she was able to prove that she discovered alleged fraud for the first time in December, 1995 in course of altercation with her mother. She claimed that her relation with her mother became bitter after marriage as she married a bramhin boy. She also claimed her mother did not disclose the facts relating to her beneficial interest in the trust property to her and thus her mother joined her hands with the defendants No.1‐4 in the process of commission of fraud upon the Courts.
Let us now examine as to how far the plaintiff was able to establish such plea in her evidence.
We find that she admitted in her evidence that she was given in marriage meaning thereby that her marriage was an arranged marriage and not an outcome of their love affair. She also admitted in her evidence that she started living with her husband in the paternal house i.e., suit premises since the time of her marriage with her mother. She also admitted that they were staying together in the suit premises. As such development of bitterness between the mother and daughter since the time of the plaintiff marriage as claimed by the plaintiff, cannot be believed. In this regard, we may refer to Ext. A, which was a registered deed of conveyance dated 19th April, 1995. Juthika Mullick and Sabita Banerjee jointly purchased half share in premises at 17/1C, Nilmoni Mitter Street, Calcutta 700 006 from their vendor viz., Jayanta Chakraborty. The remaining half share of the said property was also purchased by them jointly from the other vendors, namely, Sri Santulal Chakraborty & Ors. by another registered deed of conveyance dated 19th April, 1995 being Ext.A‐1. Had there been any bitterness between them they would not have purchased a property jointly from a common vendor by a common deed. Ext. D is another registered deed of conveyance by which both Juthika Mullick and Sabita Banerjee jointly sold their right title and interest in respect of premises being 28‐A Syed Ameer Ali Avenue, Calcutta 700 017 to their purchaser for a valuable consideration. The said deed of conveyance was executed by them on 7th February, 1989. This shows that there was no bitterness between the mother and the daughter even in 1989. Ext. B is the judgment passed by the Hon'ble Supreme Court on 28th 1994 in the Civil Appeal No.8545 of 1983. The cause title of the said appeal shows that Juthika along with Sabita Banerjee preferred the said appeal. Sabita attained the age of majority on 18th June, 1975. As such she joined with her mother for filing the said appeal. Mother contested the said suit tooth and nail upto the Hon'ble Supreme Court to protect their stay in the suit premises. She also represented her daughter so long as she was minor. All these series of transactions and the filing of appeals jointly by them coupled with the fact that they all stayed together in the same house will prove beyond doubt that there was cordial relationship between mother and daughter and Sabita had the knowledge as to what her father did relating to the suit property about the creation of trust, cancellation of trust, selling the property in favour of Dr. Bal, acceptance of the lease of the suit property from Dr. Bal etc. since before December, 1995 when the snatching incident allegedly took place. The story of discovery of those facts in December, 1995 from the document which she snatched from her mother, during her altercation with her mother is nothing but a story hatched by her to save limitation. It is also interesting to note her that apart from the three deeds which she allegedly snatched from her mother in December, 1995, she also produced the original lease deed and proved the same in her evidence. As such we have no hesitation to hold that lease deed was in her custody. In the aforesaid set of facts we hold that Sabita has failed to establish that she came to know the aforesaid facts relating to her father's ownership in the suit property, execution of trust deed by him in respect of the suit property, cancellation of the said trust deed, the sale of the suit property her father in favour of Dr. Bal and the creation of tenancy in favour of her father by Dr. Bal, in December, 1995.
We further hold that even a void decree cannot be avoided without filing a suit when declaration of voidness of such decree depends upon validity of past transactions, as in the case here. In our view, legality of such decree can only be challenged in a regular suit and not by way of application under Section 47 of Civil Procedure Code. Let us now consider as to period which is prescribed under the Limitation Act for filing such suit.
Mr. Mitra, learned senior counsel, however, contended that Article 59 of the Limitation Act is not applicable in the present case as this is a suit relating the trusts, According to him such suit is governed by Section 10 of the Limitation Act. Section 10 of the Limitation Act runs as follows:
Section 10: Suits against trustees and their representatives:-- Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. Explanation.--For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.
Let us now consider as to how far Section 10 of the Limitation Act can be applied to rescue the plaintiff in the facts of the instant case. In this regard, we are required to consider as to whether the present suit is a suit against the assignee of a trust property. On apparent look at the said provision one may think that no length of time is prescribed for filing the suit against such assignee. According to Mr. Mitra, such a suit against the assignee may be filed at any point of time. Even assuming that such contention of Mr. Mitra is correct, still then this provision, in our view, cannot be applied in the instant case, for the reason that Dr. Bal was an assignee for valuable consideration. As per the said provision suit against such an assignee for valuable consideration and/or his legal representatives cannot be saved under Section 10 of the Limitation Act.
In this regard we also feel it necessary to consider as to whether the assignee, viz., Dr. Bal and his subsequent purchasers at all acquired any interest in the said property by way of assignment of the trust property by Lal Behari Mullick or not. The deed of cancellation of trust deed was executed by Lal Behari Mullick on 5th March, 1963 even though such power of cancellation and/or revocation was not reserved by the settler in the trust deed. At the time of cancellation his daughter being minor, was incompetent to give consent at the relevant time. Lal Behari Mullick could not have cancelled the trust without taking consent of the Principal Civil Court of the District so far as his minor daughter was concerned. He did not take such consent from the Principal Civil Court of the District. As such cancellation was void. But at the same time we cannot be unmindful of the fact that the said trust deed gives the authority to the trustee to sell mortgage or otherwise dispose of alienating the trust property or any part thereof for augmentation of its income. The relevant clause of the trust deed runs as follows:‐
5. ... Notwithstanding anything contained in the proceeding paragraph it shall be lawful for the Trustees for the preservation of the Trust Estate and better management of the Trust properties and for the purposes mentioned in the clause (f) hereof to sell, mortgage or otherwise dispose of or alienate the trust estate or any part thereof. Upon such disposition or alienation purporting to be made in pursuance of any power herein contained the Purchaser or any other person dealing benafide with the said Trustees shall not be bound or concerned to enquire whether the occasion for exercising such power has arisen or otherwise as to the property or regularity of such disposition or alienation and notwithstanding any improperly or irregularity in such disposition or alienation the same shall as regards the purchaser or other person as aforesaid be deemed to be within the powers aforesaid and to be valid accordingly.
This power to sell mortgage or otherwise deal with the trust property for preservation and for management of the trust property was given to the trustees jointly and not severally.
In the present case we find this power has not been exercised by all the trustees jointly. Instead of exercising this power by all the trustees, we find that one of the trustees namely, Lal Behari Mullick, alone cancelled the trust deed and thereafter he sold the said trust property in favour of Dr. Bal in his personal capacity and not as trustee. Thus it is not a sale by the trustee. Rather this was sale by Lal Behari Mullick in his personal capacity. As such Dr. Bal is not an assignee from the trustee. Thus Section 10 of the Limitation Act is not applicable in the instant case. Before parting with we like to mention here that since the declaration of voidness of the eviction decree which is sought for by the plaintiff cannot be granted unless deed of cancellation of the trust and the subsequent transaction made by Lal Behari Mullick are set aside by a competent Court in an appropriate suit we are of the view that the instant suit was otherwise competent subject to limitation and Article 59 of the Limitation Act is applicable in the facts of the present case. Thus by relying upon the decision of the Hon'ble Supreme Court in the case of Md. Noorul Hoda v. Bibi Raifunnisa & Ors. reported in (1996) 7 SCC 767 and the unreported decision of the Hon'ble High Court in case of F.A No. 174 of 2005 Hamida Begum alias Alo Bibi v. Umran Bibi & Ors., cited by Mr. Das, we hold that Article 59 of the Limitation Act is applicable in the facts of the instant case. Thus, we conclude that since the suit has not been filed within three years from the date of knowledge of the facts entitling the plaintiff to sue for setting aside the said decree, the suit is barred by limitation under Article 59 of the Limitation Act.
Lastly we like to point out another important fact touching the merit of the suit. Lal Behari Mullick sold the premises No.266‐A, Chittaranjan Avenue on 5th March, 1963. He also executed the cancellation of Trust Deed on the same date i.e., on 5th March, 1963. In the said cancellation, he mentioned that he intended to purchase a property at Syed Ameer Ali Avenue after selling the property at Chittaranjan Avenue for augmentation of the income. In fact on the very same day when he sold the premises No.266‐A Chittaranjan Avenue, he purchased the property at Syed Ameer Ali Avenue, probably by utilizing the money which he received from the sale of Chittaranjan property. This conclusion we draw as we find that the consideration money passed for both the said transaction is almost same.
We also find from the purchase deed of Syed Ameer Ali Avenue that the said property was purchased by Lal Behari Mullick with his wife. After Lal Behari Mullick died, his wife along with her daughter sold the said Syed Ameer Ali Avenue property at a substantially high price and thereafter they purchased another property in Kolkata. If these series of transactions are taken into consideration, then it goes without saying that the sale proceeds collected from sale of the trust property was utilized for purchasing another valuable property in kolkata and thus the said purchased property became a part of the trust property and when the ultimate beneficiaries sold the same for their own benefit, the trust came to an end with the fulfilment of the objects of the trust. We thus hold that when the plaintiff herself enjoyed the benefit of the fraudulent act of her father, she cannot complain of the illegal acts of her father.
After considering the facts and circumstances as stated above we hold that the learned Trial Judge was absolutely justified in holding that the suit is barred by limitation as this suit was not filed within the time prescribed under Article 59 of the Limitation Act. The judgment and decree passed by the learned Trial Judge are thus approved. The appeal is thus dismissed.
That apart, we also hold that the dispute which the plaintiff is now seeking to introduce cannot be raised in this suit as raising of such dispute is barred by the principles of constructive res judicata.
Before parting with we like to mention here that while considering this appeal we also considered the plaintiff's application for amendment of plaint. On perusal of the said application, we find that that the facts which are sought to be brought on record by way of amendment are already on record in the original pleading of the plaintiff. As such we do not find any necessity for allowing the said application for amendment. The application for amendment is thus dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) I agree (Debi Prosad Dey, J.)