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c) In terms of Clause 23 of the deed of trust, the trust is irrevocable. Trust properties are partly tenanted. A sum of Rs.534.50 p. per month was realized from the trust property by way of rent. Because of objection raised by the Defendant No. 1 tenants are not paying rent. Meagre income from the trust property made it very difficult to manage and administer the same and to pay the outgoing.

d) The Defendant No. 1 had filed a suit in the City Civil Court at Calcutta, which was registered as Title Suit No. 2937 of 1997 claiming a portion of the trust property. There are conflicting claims in respect of the trust property. Clause 19 of the deed of trust provides that beneficial interest of the trust property shall be in perpetual succession only to the male successors. It is contended that the trust was not validly constituted being hit by the rule against perpetuity and is, therefore, void. It is Page |4 contended that Karuna Mohan Shaw, since deceased, the father of the Plaintiff was the sole and absolute owner of the trust property. On death of the said Karuna Mohan Shaw, since deceased, the Plaintiff no. 1 and 2 to 6 the succeeded to the trust property and are the present owner. It is stated that the Defendant No. 1 is not even the beneficiary of the trust.

ix) It is denied by the Defendant No. 1 that the trust is hit by rule against perpetuity. All other allegations contained to the plaint were denied by the answering Defendant.

Mr. Bose, the Learned Senior Counsel representing the Plaintiff submitted that mere reading of the Deed of Trust dated 20th September, 1955 goes to show that the trust was created in perpetuity and the trust property is placedforever beyond the exercise of power of alienation. In other words, by the Deed of Trust dated 20th September, 1955, a disposition was made for which the trust property became inalienable for an indefinite period. Mr. Bose referred to Clause 2, 3, 4, 5, 8, 19 and 23 of the trust deed in support of his condition. In further elaboration of argument it is submitted that the trust was created for the benefit of the named beneficiaries. All of them expired, namely, Karuna Mohan Shaw, Sailendra Mohan Shaw and Judhistir Mohan Shaw. The said persons were only beneficiaries, last of whom passed away in the year 1982. By a conjoint reading of Clause 1 and 2, it is apparent that the trust provided beneficial interests of right of residence to Karuna Mohan Shaw, Sailendra Mohan Shaw and Judhistir Shaw as well as their father Gopeswar Shaw, as well as for their respective families for the purpose of personal occupation, as may be decided by Gopeswar Shaw. There is no devolution of such interests unto and infavor of heirs of the named beneficiaries in the trust deed. There having been no provision for devolution P a g e | 11 of property upon the death of the named beneficiaries, the deed of trust become void, empowering to trustee to hold the property in perpetuity without power of alienation. According to Mr. Bose, exactly this is the point which offend the rule against perpetuity as contained in Section 14 of the Transfer of Property Act. Mr. Bose refers to  Moulvi Ali Hossain Mian & Ors. Vs Raj Kumar Halder & Ors. (AIR1943 Cal 417);

"Essentially an Originating Summons has been regarded as appropriate remedy where a question of interpretation arises that does not depend for its resolution upon an appreciation of evidence or determination of disputed factual matter of some complexity."

The questions framed in the plaint are to be considered in the context of the whole plaint. The plaint and the questions framed are organic whole. Perusal of the plaint impress the mind with certain facts and pleadings. Firstly, it is averred that a civil suit is pending in the City Civil Court instituted by the Defendant where the Defendant's right, title and interest, as claimed, in the same trust property are subject matter of the suit. It is also in the pleading that Defendant No. 1 is not even the beneficiary of the trust; there are various conflicting claims made by the parties as to the character and status of the suit properties as well as the legal entitlement of the parties under the Deed of Trust. It is also averred in terms of Clause 19 of the Deed of Trust beneficial interest shall be perpetual in succession only to the male successors as contained in Clause 19 of the deed; as such, there is no valid constitution of the trust as the same is hit by the rule against perpetuity making the trust void. Then it is pleaded that the suit properties belonged to the father of the P a g e | 23 Plaintiff and Defendant no. 2 to 6. Since, the Deed of Trust is void, as claimed, the property should revertto the legal heirs of the settler Karuna Mohan Shaw.