Document Fragment View
Fragment Information
Showing contexts for: revocable trust in Sabita Banerjee vs Dr. Mahendra Yashwant Bal & Ors on 15 May, 2015Matching Fragments
(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.
(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.
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:‐