Delhi High Court

Smt. Chandra Prabha vs Sh. Satish Chand Sharma & Ors. on 23 February, 2010

Author: Manmohan Singh

.*               HIGH COURT OF DELHI : NEW DELHI

+            I.A. No. 6043/2007, I.A. No. 6044/2007 and I.A. No.
             6045/2007 in CS (OS) No. 526/2007

     Smt. Chandra Prabha                                      ...Plaintiff
                     Through     : Mr. K.S. Sidhu, Sr. Adv. with
                                   Ms. Mandeep Sidhu, Adv.

                                 Versus

     Sh. Satish Chand Sharma & Ors.                    ...Defendants
                     Through : Mr. Prakash Gautam, Adv for
                                Defendant no. 1
                                Mr. L.K. Bhushan with Ms.
                                Swati Singh Malik, Adv. for
                                Defendant no. 2

Decided on : February 23, 2010

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of I.A. No. 6043/2007, I.A. No.

6044/2007 and I.A. No. 6045/2007 filed by the plaintiff under Section

151 of the Code of Civil Procedure, 1908 (the „CPC‟ for brevity) read

with Sections 55 and 56 of the Indian Trusts Act, 1882 (the „Act‟ for

brevity), under Section 74 read with Section 60 of the Act and under

Section 68 of the Act respectively.

2. The brief facts of the case are as follows. The plaintiff is the

daughter of late Pt. Mulchand Sharma, who died on 25 th December,

1939, leaving behind his widow and five minor children. Within a few

years, the widow of late Pt. Mulchand Sharma also passed away. Late Pt.

Mulchand Sharma left behind a Will dated 10th December, 1937

whereby he vested his entire property, movable as well as immovable, in

five persons who were to manage the said property and ensure that the

family of the deceased was maintained, educated and married etc. The

said Will was proved and registered before a Senior Subordinate Judge,

Delhi on 14th December, 1940 in probate proceedings and a certificate of

probate was granted on 28th May, 1941.

3. It is the plaintiff‟s case that the entire estate of her late father

(referred to as the „trust property‟) was distributed between his sons i.e.

the plaintiff‟s brothers and the factum of the said trust was falsely

concealed from the plaintiff who became aware of the same during the

proceedings of CS(OS) No. 2166/1990, which suit was filed by the

plaintiff as regards her share of the rent proceeds from the following

properties :

(i) Mercantile Building, consisting of 4 floors with adjacent land measuring 3275 sq. ft. in Block E, Connaught Place, New Delhi in occupation of defendant 1 to 3.

(ii) Shop no. 1 in Block E and Flat no. 28 above the said shop in occupation of the legal representatives of Sh. Harish Chand Sharma.

(iii) Shop no. 2 in Block E and Flat no. 29 above the said shop in occupation of defendant no. 1.

(iv) Shop no. 3 in Block E and Flat no. 30 as well as property no. 14/90 and flat no. 45/90, Connaught

Circus, New Delhi in occupation of defendant no. 2.

(v) Shares of Triveni Engineering and other movable and immovable properties acquired from the sale/profits of the deceased‟s estate.

4. The five trustees of the deceased‟s estate were under a

statutory liability to make a full inventory of the estate and to exhibit the

same in the court of the District Judge, Delhi within six months and to

render to the court a true account of the disbursement of the estate within

one year from the date of grant and they failed to perform the said

obligation. As per the plaintiff, the trustees failed to perform their part of

the liability and therefore, the present suit was filed seeking a decree for

execution of the trust by seizure and impounding of the entire estate of

the deceased; for a direction to defendant no. 4 directing him to produce

the accounts of the trust property and other records relating to the trust in

which his father, Late Sh. Bawa Milkha Singh was a trustee; and, for

appointment of a Receiver who may carry out the management of the

estate until the date when this court appoints trustees for the

administration of the trust.

5. During the pendency of the suit the plaintiff filed the

aforesaid three applications which are now being dealt with.

I.A. No. 6043/2007 (U/s 151 CPC)

6. This application has been filed by the plaintiff under Section

151 of the CPC read with Sections 55 and 56 of the Act. The plaintiff‟s

submissions in this application are that she has been denied her share of

the proceeds of the trust properties, which should have been collected

and deposited by the trustees in the court. The plaintiff has, despite

having a share in the trust properties, lived a life of poverty and

depravity and has been dependant on her husband or her sons throughout

her life.

7. Further, the rent proceeds from the trust properties were

being deposited in this court in CS (OS) No. 2166/1990. On 23rd August,

2005 this court adjourned the matter on the ground that the parties would

try and achieve a mutual settlement agreeable to all parties.

8. However, the said matter was settled without any

knowledge/intimation to the plaintiff and on this agreement, order dated

8th August, 2006 was passed and a portion of the amount deposited in the

court has been used by the defendants without the plaintiff‟s or this

court‟s knowledge.

9. With these facts in the background, the plaintiff has prayed

that she be granted rent proceeds of the trust property to the extent of her

share of at least Rs. 5,00,000/- per month till the pendency of the present

suit as financial support.

I.A. No.6044/2007

10. This application has been filed by the plaintiff for execution

of the Trust of which she claims to be a beneficiary and for appointment

of a trustee or trustees under Section 74 of the Indian Trusts Act, 1882. It

is the plaintiff‟s contention that the trustees failed in their duty to deposit

the plaintiff‟s share with a District Judge in Delhi, considering that there

was no direction in the Will to pay the same to anyone on behalf of the

plaintiff. Instead, the trustees transferred the trust properties to the male

beneficiaries of the trust in order to deprive the plaintiff.

11. The plaintiff has submitted that the trustees did not act in

accordance with Section 60 of the Indian Trust Act, 1882 as they acted

against the interest of the plaintiff, a beneficiary and it is prayed that this

Court should appoint trustee/s to administer the Trust property for the

beneficial interest of the plaintiff under the said provision.

I.A. No. 6045/2007

12. In the third application, it has been reiterated the facts

mentioned in the plaint as well as the other applications and prayed that,

under Section 68 of the Indian Trusts Act, 1882, the trust property and

its rents and profits be attached till the pendency of the suit and the

beneficial interest of defendants no. 1 to 3 be impounded until the loss

caused to her by the breach of trust is compensated.

13. The plaintiff has made the statement that the trustees of late

Sh. Mulchand Sharma‟s (her father‟s) estate acted in a mala fide manner

is supported by her with the following details :

(i) The photocopy of the probate certificate dated 28th

May, 1941 is not a certified copy under Section 76 of

the Evidence Act and is not admissible in evidence.

Further, even the photocopy is not a copy of the

original but a copy of another copy of the original.

(ii) Bawa Milkha Singh was the only one who applied for

probate and in whose name the same was granted.

The other four names, i.e. Lala Ralya Ram, Pt.

Govind Ram Lala, Lala Rattan Lal Gupta and Lala

Mela Ram were added in the margin of the forged

documents and subsequently, corresponding changes

and interpolations were made in the document. The

number of trustees, in this manner, was changed from

singular to plural and in fact, the executors of the

Will changed themselves from the executors to the

trustees of their own accord. Three of the five

trustees are total strangers to the trust deed as they do

not figure among the trustees appointed by the author

of the trust.

(iii) The forum of District Court was deliberately chosen

as it had no jurisdiction to entertain the application

for probate.

(iv) The probate had been obtained in contravention of

the Court Fees Act which provides that the petitioner

must file a valuation in form prescribed in Schedule

III of the said Act and satisfy the court that he has

paid the requisite fees on such valuation. No such

value of assets was filed in the present case and the

certificate was obtained on a stamp paper of Rs.500/-.

(v) Lala Mela Ram, one of the names which appears on

the forged document, does not feature among the

trustees appointed by the author of the trust and in

fact, the same replaced Lala Prem Lal Gupta, who

was named by the author of the trust.

(vi) After grant of probate, no inventory of the properties

was made and this statutory obligation was shirked

by the trustees.

(vii) Another document used as evidence by the

defendants is dated 11th October, 1958 and has been

executed by Lala Ralya Ra, acting through a donee of

his power as trustee, namely Mr. H.C. Sharma,

defendant herein. Section 47 of the Indian Trusts Act

provides that a trustee cannot delegate. Generally

speaking also, this is a violation of the maxim

delegates non protest delegare, i.e. a delegate cannot

delegate further. Lala Ralya could not delegate his

power as a trustee to anyone, much less to Mr. H.C.

Sharma who was one of the beneficiaries of the

Trust. Mr. H.C. Sharma then executed the deed of

transfer dated 11th October, 1958 in favour of his

brother Mr. R.C. Sharma.

14. Dr. K.S. Sidhu, learned Senior counsel has argued that the

present suit for execution of the Trust under Section 59 of the Trust Act

has been filed stating, inter alia, that the trustees had been acting

fraudulently from the date of death of the author of the trust. According

to him, the trust properties stood transferred to the three sons of the

deceased and since the Trust is incapable of being executed, the Trust

properties revert to the estate of the deceased for the benefit of his legal

representatives.

15. He has also argued that the market value of the said

properties sought to be partitioned runs into crores of rupees. The rental

income from the Trust properties is being enjoyed by the three sons of

late Sh. Mulchand Sharma, author of the trust to the exclusion of the

female beneficiaries. Therefore, by means of the present applications,

the prayer sought by the plaintiff is liable to be allowed.

16. In support of his submission, learned senior counsel for the

plaintiff has referred to Section 83 of the Trust Act which provides,

inter alia, that if a trust is incapable of being executed, the trustee "must

hold the trust property for the benefit of the author of the trust or his

legal representatives".

17. He has also referred to Section 95 of the Act which provides

for relief to a beneficiary who is deprived of her interest by the

underhand dealings of the trustees acting fraudulently for the advantage

of the male beneficiaries at the expense of the female beneficiary. The

plaintiff in this suit is one of the beneficiaries. He has referred various

other decisions in support of his submission.

18. The defendants have, in reply to all three applications,

submitted certain common contentions which have been summed up

hereinafter.

19. In their reply to this application, defendants no. 3A to 3D

have submitted that the application ought to be dismissed as the suit is

not maintainable as the trust being mentioned by the plaintiff has

become extinct as the same has already devolved upon late Sh. H.C.

Sharma, Sh. S.C. Sharma and Sh. R.C. Sharma.

20. It is urged that the plaintiff is stopped from filing the present

suit and application due to the order passed by this court in I.A. No.

4910/2000 in CS (OS) No. 2166/1990 on 29th May, 2007.

21. Another suit being no. 1573/1996 has been instituted by the

plaintiff in the court of Sh. P.K. Saxena, ADJ, Delhi for declaration,

permanent injunction and rendition of accounts. As such, the present suit

of the plaintiff is not maintainable. Further, the application is vague and

has demanded Rs. 5,00,000/- without furnishing any particulars/details.

22. On merits, defendants no. 3A to 3D have submitted that as

per the Will of late Sh. Mulchand Sharma, the plaintiff‟s maintenance,

education and marriage were taken care of by the trustees and at that

time, the limited rights of the plaintiff in the deceased‟s estate were

extinguished. The trustees then managed the estate on behalf of the

minors and the widow of the deceased.

23. After the sons of late Sh. Mulchand Sharma attained majority

and with the development of his estate in favour of the three sons, the

trustees discharged their office and the plaintiff could not have any right

in the trust as the same was extinct. It was the wish of late Sh. Mulchand

Sharma that his properties should devolve upon his three sons, though

the same were to be utilized for the maintenance of his wife and the

education etc. of all his children and the same has been stated

categorically in the Will.

24. Further, the plaintiff‟s assertion that she spent her life in

poverty and deprivation has been assailed by the answering defendants.

It is the defendants‟ submission that the plaintiff married an Army

officer in the year 1951, who rose in the rank to become a Major General

of the Indian Army. In these circumstances, it is an outright lie for the

plaintiff to be terming her life as one of poverty and depravity. In

addition to this, after her marriage, the plaintiff became the

responsibility of her husband/children.

25. The defendants no. 3A to 3D have submitted that there is no

requirement whereby a trustee needs to be a signatory of a Will. A trust

in relation to an immovable property would be valid if it is created by

the Will of the author of the Trust and in the present case, the Will

clearly sets out the names of the five trustees.

26. It is argued by the defendants that as per Section 77 of the

Indian Trusts Act, the Trust has become extinct after the completion of

the task assigned to it. The transfer deeds were executed way back in

1954-58 and the same are registered documents which were acted upon

by the parties.

27. The defendants have denied the allegation of forgery of the

probate certificate or the trust document and have submitted that the

plaintiff has produced no proof supporting the allegation of fraud. No

other person or other beneficiary challenged the grant of the probate.

28. In this respect, counsel for the defendants have referred to

Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors., (1993) 2 SCC

507 and Sheo Persons Vs. Ram Nandan Narayan Singh, AIR 1916

Privy Council 78, the latter being referred to in the former itself. The

relevant portion of Chiranjilal Shrilal Goenka (supra) is reproduced

hereinbelow :

"16. The grant of a probate by court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the probate court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh v. Ramnandan Prasad Narayan Singh the Judicial Committee was to consider whether the will which had been affirmed by a court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (civil court) in suit to declare the grant of probate illegal etc."

29. I have perused the applications and the records of the case. It

appears that multifarious litigations have been going on between all the

parties. OMP No. 58/1994 titled Asha Sharma & Anr. Vs. R.C. Sharma

& Ors. was disposed of by transfer of suit no. 510/2006 which was

pending in the court of Sh. Rakesh Pandit, ADJ, Delhi to this court to be

listed with CS (OS) No. 2166/1990.

30. Another suit by the no. 2272/2007 titled Smt. Chandra Prabha

Vs. S.C. Sharma & Ors. was disposed of as withdrawn by order dated 1 st

December, 2008.

31. The plaintiff in this case has stated that she would prosecute

only the present suit as the subject matter was the same. She also stated

that she would get her name deleted from the array of parties in CS (OS)

No. 2166/1990. CS (OS) No. 2166/1990 is titled Satish Chandra Sharma

& Ors. Vs. R.C. Sharma & Ors. wherein the plaintiff‟s name, who was

defendant no. 9 therein, actually got her name deleted by order dated 3rd

September 2009, i.e. almost 9 months after her statement on 1 st

December, 2008. The suit, i.e. CS (OS) No. 2166/1990 was disposed of

on 29th October, 2009 as a compromise application filed by the parties

was allowed.

32. As regards the plaintiff‟s allegations that the trustees have not

acted properly as regards the probate and at the time of execution of the

probate, the answering defendants have argued that this court does not

have the jurisdiction to probe this aspect as the probate was granted and

not objected to and has therefore become a judgment in rem. Further,

court fees is a matter of procedure and again, the same cannot be

challenged by the plaintiff at present in the present applications. A copy

of the said probate was filed in suit no. 2166/1990 in respect of inter se

litigation between the three sons of the deceased and has been

challenged as fraud for the first time now, after more than 60 years of

being granted. The said challenge and other contentions raised by the

plaintiff on merit cannot be determined while deciding the present

applications. The Court at this stage has not been called upon to decide

the applications after going through the strength of the matter on merit at

this prima facie stage. The contentions of the plaintiff are yet to be tested

at the time of trial.

33. The Will dated 10th December, 1937 has been probated and

the judgment passed was a judgment in rem which cannot now be

challenged, i.e. 68 years from the date of its effect. The properties of late

Sh. Mulchand Sharma were distributed amongst his sons by the

executors of his Will through documents as long back as 1954-58 and

for all purposes, the said sons became the owners of these properties.

34. As stated in the Will, the maintenance, education and

marriage etc. of the testator‟s children was carried out from the income

of the properties and thereafter, as desired by the testator, the immovable

properties were transferred in favour of his sons when they attained the

age of majority.

35. Further still, the plaintiff is claiming monies out of the rent

proceeds of the properties of the deceased, though the same claim has

been dismissed by this very court on 29 th May, 2007 in I.A. No.

11875/2006 in CS (OS) No. 2166/1990.

36. Prior to deletion of her name as defendant no. 9 in the above-

referred suit, the contentions of the plaintiff were not accepted in the

order passed by Hon‟ble Justice Sanjay Kishan Kaul in suit no.

2166/1990. The relevant portion of the said order is reproduced

hereinbelow :

"...The grievance of the defendant no.9 is that she being the daughter of late Sh.Mulchand Sharma, no rent proceeds are being paid to her and the other parties have divided the rent proceeds between themselves in terms of the order dated 08.08.2006. ... Insofar as the rights of defendant no.9 are concerned, one has to go back to the document of Will dated 10.12.1937. A reading of the said Will makes it clear that the testator clearly and unequivocally had mentioned that after his death all the property would go to his sons in equal shares subject to certain conditions as specified therein-after. These conditions relate to the right of residence of his wife, marriage provisions for his daughter and Ms. Chanderwati and the education and maintenance of all the children including defendant no.9, the second daughter. It is the plea of learned counsel for defendant no.9 that the expression 'education, marriage, upkeep and support' for all the children and the wife includes the rights of maintenance even today to her long after she got married. It may be noticed that the provision was made by appointing five trustees to manage the estate.

I am unable to persuade myself to agree with the contention of learned counsel for defendant no.9 for the reason that the intent of the Will is clear. One cannot lose sight of the fact that the Will was made on 10.12.1937 and has to be construed to indicate the intent of the testator. The intent is clear that the three sons should be the beneficiaries of the property. There are certain provisions made for the residence of the wife and the children. The object of providing so was that the children would be required to be educated, maintained, supported and then married. That has already happened in the case of defendant no.9 who has chosen to file these applications decades after the matter had attained some finality on account of mutation with the LandDO, awards being passed and the decree being passed by this Court."

37. As has already been discussed, as recorded in order dated 29th

May, 2007 in CS (OS) No. 2166/1990 this Court dealt with the same

submission wherein the argument of the plaintiff was been rejected by

the learned Single Judge. There is a clear finding arrived at against the

plaintiff in the light of the order passed and a different view cannot be

taken by allowing the prayers made in the applications. Without going

into the merit of the case as to whether the suit is maintainable or not, I

am of the considered view that all the rival submissions raised by the

parties are to be examined at the time of trial of the matter. Therefore, at

this stage this court is not inclined to pass any order in favour of the

plaintiff in these applications. Thus, the prayers made in these

applications are rejected. All the three applications are, hence,