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32. Clause 19 makes it clear that Smt. PDB could revoke the trust by executing Will or otherwise. She had revoked the trust by executing the Will dated 18th April, 1999 and on 15th April, 1999, three days before the execution of Will there was revocation of the trusts by her. She herself intimated such revocation to the Income-Tax Department by letter dated 27.6.2000. In view of such state of facts and the deeds and documents it is clear that the trusts were revocable and were in fact the said five trusts were revoked. No oral evidence is permissible in law to be adduced to vary or contradict the written provisions of the deeds in view of bar under Sections 91 and 92 of the Indian Evidence Act, In view of these sections no evidence or oral agreement or statement can be admitted for the purpose of contradicting, varying, adding to or subtracting from the terms mentioned in the written deeds or the terms of the trust deeds so far as the said trust deeds relate to revocation and the Will executed by her.

34. He argued that the alleged mutual Wills created by Shri MPB and Smt. PDB in 1981 and 1982 were of no effect as the settlers themselves subsequently in 1988 by creating five trust deeds made departure from earlier mutual Wills. The background of mutual Wills can be found in Halsbury's Laws of England, Volume 50 para, 271. In spite of such mutual Wills alleged by the complainant showing intention of late MPB and PDB to leave all their properties in charities and in view of their mutual agreement if the first person makes any alteration, the survivor can also alter the earlier intention. In the instant matter late MPB himself altered his own earlier intention reflected in the mutual Wills in 1988 by executing a deed of trust on 25th February, 1988. Late PDB also created four trusts in February, 1988 and altered their alleged intention reflected in the mutual Wills. The trust deeds created by the settlers namely, late MPB and PDB clearly show departure from earlier Wills and it establishes that the earlier Wills or the mutual Wills all were revoked. Sections 77 and 78 of the Indian Trusts Act deal with extinguishment and revocation of trust. Section 77(d) of the Trusts Act provides that when the trust, being revocable, is expressly revoked, the trust is extinguished. Section 78(b) provides that a trust 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, the trust may be revoked at the pleasure of the testator. There are other modes of revocation of trust. The trusts created by MPB clearly contain the clause empowering the survivor to make directions to fulfil the intention of late MPB. Thereafter, late PDB during her lifetime made the necessary directions according to wishes of her husband. In view of all the trusts she was the sole beneficiary and she had express power of revocation.

40. Before the Probate Court the points for consideration would be (i) whether the testatrix has sound disposition of mind at the time of executing the Will in question, (ii) validity of the Will, (iii) whether the Will was duly executed and attested and whether attestation was in accordance with law. In order to save revocation of the trusts a letter to the Income-Tax Department was sent later on to show as if it was a codicil. It was not disclosed at all how the revocation of trusts was made and what were the grounds of alleged revocation of trusts. No deed of revocation was ever produced before any authority including the Probate Court to make it out the grounds for revocation as alleged. The decision of Probate Court is not binding at all on the Criminal Court relating to offence alleged. The central issue in complaint is whether the accused persons committed criminal breach of trust of property belonging to three charitable institutions. This issue is not at all a relevant issue in the probate proceeding or in any civil proceeding. There is no commonality of issues concerning the allegation of breach of trust in the Probate Court and in the Criminal Court.

50. Mr. Jethmalani also submitted that the first accused became co-trustee without knowledge of the complainant. The petitioner came to Court not with clean hands. Being a trustee of MPBF the first accused cannot convert the said trust property into his own hand as his personal property. The second accused was a trustee of all five trusts. It is strange how the second accused allowed trust property to become personal property of Mr. Lodha. All these facts and circumstances clearly establish that there was gross breach of trust in respect of trust properties particularly in respect of three charitable institutions. The item No. 1 of the first schedule of the trust of MPB is a very valuable property as it is 1500 shares of East India Investment and in view of the instructions of the trust deed the said shares vests forthwith to HMI and PDB cannot damage the said instruction of the trust. Revocation of trust is completely different from causing loss or damage to public charitable trust. The trust of PDB dated 4.2.88 in respect of item Nos. 1 and 2 of the first schedule are very valuable properties as these are 3875 ordinary share of East India Investment and 40,000 ordinary share of Gwalior Webbing Company and these are the substantial shares of the said two companies belonging to the M.P. Birla group and Clause 19 of the trust deed cannot operate as power of revocation. The oral agreement of settler relating to their intention to create trust requires consideration. As there was no deed of revocation, the trusts cannot be revoked by Will, and even if revoked, it should be concerning trust fund and the said properties cannot be given to Mr. Lodha personally. The vesting in respect of PDB was made subsequently and so it was vested interest and interest to vest in public charity is a vested interest. In order to revoke the trust deed under Clause 19 of the trust deed there must be deed of revocation showing clear intention of revocation of trust when it is settled in law that once properties vested in charitable and public trusts those cannot be revoked.