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Showing contexts for: revocable trust in Sambit Sarkar vs Mina Mallick on 4 October, 2023Matching Fragments
(iii) Whether learned Courts below committed error in considering the document as a deed of trust with prohibition as to revocation of the same?
16. Mr. Siddhartha Roy, learned Counsel for the appellant assailing the impugned judgement submits that the appellant purchased 1 cottah 12 chittak and 24 square feet of land, out of the property in suit, at the consideration of Rs. 2,00,000/- on 23rd June, 2006 and not the entire suit property.
31. Mr. Chakraborty in support of the judgement impugned submits that Nirmala Chowdhury could not have revoked the deed of trust because of the prohibition in deed. Attention of the Court is drawn to the provision of Section 78 of the Indian Trusts Act, 1882, which envisages :-
"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."
32. In my humble opinion, since the plaintiff was not a beneficiary, rather one of the joint trustees, Section 78 of the Indian Trusts Act, 1882 has no manner of application in this case. Thus the judgements relied upon by Mr. Chakraborty in the case of Smt. Sikha Das & Anr. vs. Sri Jitendra Kumar Boral & Ors. reported in 2009 CWN 919 and in Chetan Kaur vs. Jaspreet Singh & Ors. reported in 2023 (3) ICC 615 are of no help.