Calcutta High Court (Appellete Side)
Sarat Kumar Law & Anr vs Gouri Law & Ors on 13 September, 2023
13.09.2023.
Item No. 20.
Court No. 13
sp F.A. No. 75 of 2011
With
I.A. No. CAN 2 of 2013 (Old CAN 9573 of 2013)
Sarat Kumar Law & Anr.
Versus
Gouri Law & Ors.
(Sankar Law since deceased)
Mr. Sabyasachi Chowdhury,
Ms. Amrita Pandey,
Mr. Ghanshyam Pandey.
...For the appellants.
Mr. Sounak Bhattacharya,
Mr. Sounak Mandal,
Mr. Abhirup Halder,
Mr. Anirban Saha Ray.
..For the respondent Nos.1(a) & 1(b).
Mr. Shiladitya Burma.
...For the respondent no.16.
1. The appeal is directed against the judgment and
decree dated June 30, 2010 passed by the learned
Civil Judge (Senior Division) 9th Court at Alipore in
Title Suit No. 26 of 2001.
2. By the impugned judgment, the Court below
upheld the right of the settlor of a Trust Deed dated
17th September, 1983.
3. This Court shall confine itself to the sole issue
raised by the counsel for the appellant and shall
discuss the facts only to that extent.
4. By a registered Deed dated 17th September,
1983, the settlor Mohamaya Law, widow of Late Tulsi
Charan Law, created a Trust in respect of a residential
property standing in her name and situate and lying at
premises No.8, Pritoria Street, kolkata - 700 071.
5. By the said Trust Deed, four of her sons,
including the widow of a deceased son, were allotted
various parts and portions of the said residence. The
settlor was to remain as trustee during her life time.
The beneficiaries, sons and daughter-in-law were
invested with the responsibility of maintaining the
property and caring for the settlor. Upon the death of
the settlor, the portion of the property being occupied
by the beneficiaries respectively was to devolve upon
each them.
6. There are various other terms and conditions
stipulated in the trust deed which need not be gone
into. What is, however, necessary to be set out
hereunder is Clause 6 of the said trust deed .
"6. Notwithstanding anything hereinbefore
contained the Settlor shall have the liberty to
modify and/or revoke the provisions herein
contained in such manner and form as she will
decide in her absolute discretion."
7. The terms and conditions of the trust deed
continued to be implemented by the parties. They lived
peacefully in the suit property until sometime before
September 21, 2000.
8. On the said date, i.e., September 21, 2000, the
settlor invoking Clause 6 of the said trust deed, by a
registered deed, invoking revoked the entire trust and
settlement.
9. The reasons stated for revocation are, inter alia,
that the appellants did not treat the settlor properly
and misbehaved with her. There are various other
allegations against the appellant beneficiaries.
10. On the very next day, i.e., September 22, 2000,
the settlor executed a deed of gift of the entire property
in favour of the defendants/respondents Biswanath
Law and Sankar Law, two of her four sons.
11. The Court below, after receiving the written
statement from the defendants, framed seven issues
and one additional issue.
12. The parties led oral evidence. The court below
upheld the revocation of the trust deed and the
subsequent gift deed.
13. Mr. Sabyasachi Chowdhury, learned counsel
appearing for the appellants, in his usual fairness
submits before this Court that the scope of the appeal
remains within a narrow compass, i.e. as to whether
by reason of Clause 6 of the trust deed, the settlor
could have revoked the entire deed itself.
14. Mr. Chowdhury would argue that a plain reading
of Clause 6 set out hereinabove would indicate that
the settlor at best could have modified certain Clauses
of the trust deed or revoked portions thereof. She was
not entitled to revoke the deed itself as a whole.
15. This Court notices that a trust can be revoked,
inter alia, under Section 77 Sub-Clause d when it is
stated to be expressly revocable.
16. It appears to this Court in no uncertain term
that the settlor, by reason of the covenant contained in
Clause 6 set out hereinabove, had indeed reserved to
herself the right of revocation.
17. As to whether the said right of revocation
entitles the settlor to revoke the trust deed as a whole
and/or dissolve and extinguish the Trust, has to
carefully construed by applying each and every word
and also reading the Clauses as a whole.
18. It appears to this Court that by use of the
phrases in Clause 6 the settlor shall have the liberty
to:-
(a) to Modify and/or revoke;
(b) to modify and/or revoke the provision herein;
(c) to modify and/or revoke the provision herein
contained;
(d) To modify and/or revoke the provision herein
contained in such manner and form;
(f) To modify and/or revoke the provision herein
contained in such manner and form as she will
decide her absolute discretion,
(g) The chronology of the clearly invested upon and
entitled the settler to revoke the trust deed as a
whole.
19. The provisions of Sections 77 and 78 of the
Indian Trust Act, 1882 particularly, Section 77(d)
empowers any settlor to a trust, to revoke the trust
deed if such right of revocation is expressly provided
for in the trust deed. A conjoint reading of Section
77(d) of the Act with Clause 6 of the trust deed would
essentially imply that once a power of revocation is
reserved by a settlor in the trust deed. The trust can
be revoked in any manner either, in part, or a
substantial part, or the deed itself as a whole. This
would follow from a plain reading and/or
interpretation of Clause 6. The said interpretation is
also be necessary to give effect to the intention of the
settlor as can be gathered from the Trust Deed as a
whole.
20. This Court, therefore cannot find any infirmity in
the impugned judgement and order upholding the
right of the settlor Mahamaya Law to revoke the trust
deed dated September 17, 1983.
21. The impugned judgement dated June 30, 2010
passed by the learned Civil Judge (Senior Division) 9th
Court at Alipore in Title Suit No. 26 of 2001 is upheld.
22. F.A. 75 of 2011 shall stand dismissed.
23. In view of the above, pending applications, if
any, shall automatically stand dismissed.
24. All parties are directed to act on a server copy of
this order duly downloaded from the official website of
this Court.
(Rajasekhar Mantha, J.)
(Supratim Bhattacharya, J.)
