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5. Is the plaintiff entitled to get a decree, as prayed for?
6. To what relief, if any, is the plaintiff entitled?
7. Issue No. 2 : Not pressed.
8. Issue Nos. 1, 3 to 6 : All these issues are taken up together for the sake of convenience and brevity and in order to avoid repetition.
9. The facts admitted and/or undisputed in the present case, as are evinced from the pleadings and documents filed, are as follows:
Radheshyam Seal, father of the plaintiff Subol Charan Seal, since deceased and substituted by heirs, defendant No. 1 Parbati Sankar Seal, since deceased and substituted by heirs and defendant No. 2 Hiralal Seal executed a deed of trust on 01.09.37 in respect of three properties viz premises No. 4, Krishna Behari Sen Street, Calcutta-6 (item No. 1 of schedule 'A' of the plaint), Jasidih property (item No. 2 of schedule 'A') and Chinsurah property (item No. 3 of schedule 'A') providing that he and his wife Sabitri Seal (mother of the plaintiff and said defendant Nos. 1 and 2) would act as joint trustees in respect of the said properties, that they during their lifetime may reside in the Calcutta property and collect rents, profits, interest and income of the properties and use the same for their benefit in equal shares. After the death of either of them the surviving trustee would act in terms of the stipulations of the trust deed. The joint trustees would hold the trust properties in trust for such of their sons and/or son's sons and/or son's son's sons in such shares and in such manner as they jointly during their lifetime or after the death of either of them, the survivor shall by any deed or deeds with or without power of revocation and new appointment or by his or her Will appoint, and in default of such appointment for all their sons absolutely and in equal shares. By virtue of the power conferred by the said deed of trust dated 01.09.37, the joint trustees executed a deed of appointment on 28.12.56 appointing their two sons defendant No. 1, since deceased, and defendant No. 2 only subject to the life interest of the appointers, absolutely and for ever in respect of Calcutta and Jasidih properties (item Nos. 1 and 2 of schedule 'A') and disentitled their another son-the plaintiff Subol of any right, title or interest therein. After the death of Redheshyam on 25.06.62, the surviving trustee Sabitri similarly executed a deed of appointment on 17.12.62 appointing the said two sons defendant No. 1 and defendant No. 2 only, subject to the life interest of the appointer, absolutely and for ever in respect of Chinsurah property (item No. 3 of schedule 'A'), disentitling the plaintiff Subol of any right, title and interest therein. Sabitri died on 26.02.75. The said joint trustees instituted a suit being Suit No. 708/62 in this Court for eviction of the licensee - the plaintiff Subol from a portion of Calcutta property which was dismissed on 19.09.79 but ultimately set aside in appeal being Appeal No. 128/80 on 24.07.2003, and the SLP preferred against the said decree was dismissed on 19.09.2003.
12. Mr. Bachawat, learned senior Counsel for the defendant Nos. 1 and 2, on the other hand, on drawing Court's attention to Clause (c) of the trust deed at page 2 contended that all the conditions of Section 6 of the Trusts Act having been fulfilled, and since the trust deed specifically provided right of revocation and right of appointment and when by virtue of such power of appointment the joint trustees and thereafter surviving trustee Subitri exercised that power appointing two sons defendant No. 1, since deceased, and defendant No. 2 in respect of the trust properties, the question of holding the trust deed or two deeds of appointment invalid does not arise. Mr. Bachawat, on referring the cases of Kameswar Pershad v. Rajkumari Ruttan Koer reported in 19 1A 234 at 237, Abhoy Kanta Gohain v. Gopinath Deb Goswami and Marwari Kumhar v. B.G. Ganeshpuri further contended that since the validity of the trust deed as also two deeds of appointment was challenged in the previous suit being No. 708/62 which was negatived by the Division Bench in appeal being 128/80 and similar challenge of the said deeds was rejected by the Executing Court which appointed receiver in the portion of the property and the heirs of Subol on the basis of undertaking made over possession of the said portion of the Calcutta property to his clients on 07.11.2004, the question of invalidity of the said deeds as agitated before this Court is barred by the principles of res judicata and constructive res judicata. The contention of Mr. Mitra in this regard is that as the issues were never decided, the question of application of the principles of res judicata and constructive res judicata does not arise, in support of which the case of Ragho Prasad Gupta v. Krishna Poddar was relied upon.
Subject to the exceptions to be presently mentioned, no contingent or executory interest in property can be validly created, unless it must necessarily vest within the maximum period of one or more lives in being and twenty-one years afterwards.
20. So long as the transferees are living persons, any number of successive estates can be created. A transfer may be made to A for life, and then to B for life and then to C for life, and so on, provided A, B and C are all living persons at the date of the transfer. However, if the ultimate beneficiary is someone not in existence at the date of the transfer, Section 13 requires that the whole residue of the estate should be transferred to him. If he is not born before the termination of the last prior estate, the transfer to him fails under this section. If he is born before the termination of the last prior estate, he takes a vested interest at birth and possession immediately on the last prior estate. In the case on hand, on the date of creation of the trust, sons were already born and the joint trustees and/or surviving trustee were empowered to appoint sons and/or son's sons and/or son's son's sons by deed or deeds or Will as they or surviving trustee may determine. Accordingly, the rule against perpetuity, as embodied in Section 14 of the Transfer of Property Act does not apply in the present case. As such, the question of the trust deed being invalid and void, as contended by the learned Counsel for the plaintiffs, does not arise at all.
21. It would appear from the above that default clause could raise its head only if there was no appointment by the joint trustees or surviving trustee. The words "such of the sons in such shares, if more than one" as used in Clause 'C of the trust deed denote that it was within the power of the joint trustees and surviving trustee to select beneficiary/beneficiaries amongst their sons. Since by virtue of the said provision of the trust deed the joint trustees exercised their power and appointed their two sons viz defendant No. 1 Parbati Sankar Seal, since deceased and defendant No. 2 Hiralal Seal only in respect of Calcutta and Jasidih property by deed of appointment dated 28.12.56 and thereafter the surviving trustee Sabitri similarly appointed by the deed of appointment dated 17.12.62 the said two sons Parbati and Hiralal in respect of Chinsurah property and specifically disentitled the plaintiff Subol, since deceased, of any right, title and interest in those properties, there was nothing wrong in the said two deeds of appointment. The said two deeds of appointment are quite legal and valid, and accordingly the plaintiff Subol was neither a beneficiary nor had acquired any right, title and interest in any of the said three properties. The decisions so referred to by the learned Counsel for the plaintiffs being distinguishable cannot be said to have any application in the present case.