Delhi High Court
Ranjan Kumar Singh & Anr. vs Angoori Singh & Ors. on 11 March, 2010
Author: Manmohan Singh
.* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 3213/2009 and I.A. No. 3240/2009 in
CS (OS) No. 2615/2008
Ranjan Kumar Singh & Anr. ...Plaintiffs
Through : Mr. Arun Jaitley, Sr. Adv., Mr. A.S.
Chandhiok, Sr. Adv. and Mr. K.
Venugopal, Sr. Adv. with Mr.
Prasanth V.G., Ms. Shuchi Jain
and Ms. Supriya Mahajan, Advs.
Versus
Angoori Singh & Ors. ...Defendants
Through : Mr. Mukul Rohtagi, Sr. Adv.
with Mr. Rohit Alex, Adv. for D-1
Mr. S.C. Aggarwal, Sr. Adv. with
Mr. Sandeep Mittal, Adv. for D-2
Decided on : March 11, 2010
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. The two applications under consideration are I.A. No.
3213/2009 filed under Order VII Rule 11 of the Code of Civil Procedure,
1908 (hereinafter referred to as the CPC) on behalf of defendant nos. 2
and 3 for rejection of the plaint and I.A. No. 3240/2009 filed by the
plaintiffs under Section 151 of the CPC for replacing defendant no. 1 as
the Trustee of the properties which are subject matter of the present suit
(contained in Schedules „A‟ and „B‟) by appointing an appropriate
person as Trustee pending the final disposal of the suit.
2. The brief facts leading up to the filing of the two applications
are that plaintiff no. 1 and defendant no. 2 are the sons of Late Sh.
Narendra Singh Singhi and plaintiff no. 2 and defendant no. 3 are their
respective wives. Defendant no. 1 is the mother of plaintiff no. 1 and
defendant no. 2 and the wife of Late Sh. Narendra Singh Singhi.
3. Late Sh. Narendra Singh Singhi passed away on 23.12.1967.
By way of a Will dated 8.6.1966 Late Sh. Narendra Singh Singhi
bequeathed his immoveable property at 48/2 Gariahat Road, Ballygunge,
Kolkata to his four daughters, all of whom have not been made party to
the present suit as they have no right, title or interest in the properties
disputed herein.
4. By the concerned Will dated 8th June, 1966, late Shri
Narender Singh Singhi bequeathed to his wife Smt. Angoori Devi,
Defendant No. 2 on trust to divide among his two sons and their
respective wives.
5. The properties to be divided between the plaintiff no. 1 and
defendant no. 2, hereinafter referred to as the „suit properties‟, comprise
the following :
(a) Jewellery items as listed in Schedule „A‟ of the plaint,
under the names of plaintiff no. 2 and defendant no. 3;
and,
(b) Curios and antiques listed in Schedule „B‟ of the plaint.
6. The terms of the Will with respect to the suit properties are as
follows :
"3. I bequeath my jewellery on trust to my wife to
divide the same in two parts of equal share as far as
possible; One such part to be given to the wife of my son
Anjan Kumar and the other to the wife of my son Ranjan
Kumar after their respective marriages.
4. I bequeath my entire collection of curios antiques
on trust to my wife to distribute the same amongst my sons
in equal share at such time and in such manner as she thinks
proper."
7. The Will of Late Sh. Narendra Singh Singhi was probated on
12.3.1970 by the High Court of Calcutta. During the probate
proceedings, defendant no. 1 undertook to administer the suit properties,
to make a full inventory thereof and to exhibit the same in the High
Court of Calcutta within six months from the date of grant of probate as
well as to render a true account of the status of the credit etc. of the
deceased within one year. For all practical purposes as well as by virtue
of creation of specific trust in her name in the Will, defendant no. 1
became the Trustee of the suit properties contained in the Will.
8. As per the plaint, an oral partition took place between the
parties as regards the jewellery contained in the suit properties as per
which it was divided between plaintiff no. 2 and defendant no. 3,
however, the same was not given effect to in so far as defendant no. 1
did not hand over physical possession of the items of jewellery contained
in Schedule „A‟ to the respective parties.
9. It is contended in the plaint that the jewellery items in
Schedule „A‟ to the plaint that are lying at Delhi at the residence of
Defendant No. 1, are shown in Schedule „C‟ to the plaint. The
remaining items if jewellery in Schedule „A‟ are located at the family
house at Calcutta where Defendants No. 2 and 3 reside.
10. The case of the plaintiffs is that after the grant of probate in
1970, the Defendant No. 1 has not discharged her obligation as a trustee
with respect to distribution of equal share between plaintiff No. 1 and
Defendant No. 2 as regards the curios and antiques listed in Schedule „B‟
and a portion of the suit property was brought by Defendant No. 1 to
Delhi when she permanently shifted to Delhi in the year 1995. The
items lying at the Delhi residence of Defendant No. 1 and at the
residence of plaintiff No. 1 are shown in Schedule „D‟ to the plaint. It is
contended that the remaining antique and curios in Schedule „B‟ are
located at the family house at Calcutta where the Defendants No. 2 & 3
reside.
11. The defendant no. 1 is an aged lady of about 93 years of age
who might now be incapable of properly discharging the duties she is
obligated to perform. Thus the present suit was filed for a mandatory
injunction directing defendant no. 1 to perform her obligations as the
Trustee of the suit properties and in the alternative, to appoint a retired
High Court Judge in place of defendant no. 1 as the Trustee of the suit
properties, to carry out all the duties and actions purported to be carried
out by the Trustee of the Will.
12. By letter dated 21.7.2008 written by defendant No.1 to the
plaintiff No.1 and defendant No.2, defendant no. 1 expressed her desire
to discharge her duties as a Trustee and to distribute the suit properties in
terms of the Will when on 29.9.2008 the plaintiffs along with their
children were present at the venue of the meeting called by defendant
No.1. It became a futile exercise since defendant Nos.2 and 3 did not
attend the meeting and as such the family meeting failed and no
partition/distribution of the suit properties could take place.
13. Thereafter the defendant No.1 wrote a letter dated 3.10.2008
conveying that she would be unable to act as a Trustee due to her old age
and due to the inter se fighting amongst the families of plaintiff No.1 and
defendant No.2. Under the said circumstances, she has clearly lost her
authority and command to prevail over the unwilling co-defendants and
to have effective distribution done as per the terms of the Trust created
by the Will and due to these circumstances, another trustee in place of
defendant No.1 ought be appointed due to the bad health and
unwillingness of the defendant No.1 to perform her duties.
14. The suit along with the interim application was listed before
Court on 16.12.2008 when in the interim application under Order
XXXIX Rule 1 and 2 CPC the Court passed an order directing the
parties to maintain status quo with regard to possession of items
mentioned in Schedule A to D annexed with the plaint and also
appointed two Local Commissioners in I.A. No.15450/2008 being Ms.
Anju Bhattacharya, Advocate to visit the premises of defendant Nos.2
and 3 situated at 48/3, Gariahat, Ballygunge, Calcutta and to make an
inventory of items as given in Schedules A and B to the plaint and Mr.
Amit Sethi to visit the premises of defendant No.1 situated at Second
Floor, 4, Munirka Marg, Vasant Vihar, New Delhi and at the plaintiff‟s
residence at 18, Kapashera Estate, New Delhi to make an inventory of
the goods detailed in Schedules C and D which are in their power and
possession.
15. The other application being I.A. No.15861/2008 was filed
and was listed on 22.12.2008 in which the plaintiffs sought police
assistance to execute the order dated 16.12.2008 on ground of non
cooperation by defendant Nos. 2 and 3 at Calcutta. The said application
was considered by the Court and police assistance was granted to the
Local Commissioner to comply with the orders dated 16.12.2008. It was
also directed that one representative of the plaintiffs would be entitled to
accompany the Local Commissioner. Both the Local Commissioners
have already filed their respective reports.
16. Upon service, the defendants filed an application under Order
VII Rule 11 and Order XXXIX Rule 4 CPC for rejection of the plaint for
want of jurisdiction of this court and for vacation of the ex parte order
respectively and other pleadings in the main suit and remaining
applications. However, the defendant nos. 2 and 3 have argued and
pressed their application for rejection of plaint being IA No. 3213/2009.
17. It is contended that this court has no jurisdiction to try and
entertain the present suit. The suit is also barred by law and is not
maintainable. It is stated in the application that what transpired in the
Probate proceedings was that the Testator had not only bequeathed the
moveable properties which are subject matter of the instant suit but also
several other immoveable properties. Some of the immoveable
properties which are at Calcutta have already been distributed amongst
the beneficiaries, namely, the co-daughters of the Testator and
distribution of other immoveable properties, namely, the ones situated at
District of Malda in West Bengal is yet to be effected. All these
properties are contended to be beyond the jurisdiction of this Court and
within the jurisdiction of the Calcutta Courts, further a major part of the
moveable properties in respect of which the suit has been filed are also
situated within the jurisdiction of the courts at Calcutta. The plaintiffs
have deliberately and willfully suppressed the non distribution of
immoveable properties in order to invoke the jurisdiction of this Court
and the same has been done by the plaintiffs with the active aid and
collusion of defendant no. 1 who is within the control of the plaintiff.
18. It is also stated in the application that by the Deed of
Declaration dated 31.3.1969 executed before the Notary Public at
Calcutta, the executrix who is defendant no. 1 in the present suit in
consonance with the Will of the Testator divided and physically parted
with the possession of half of the jewellery to defendant no. 3. The
executrix by another declaration dated 31.3.1975 made before the
Special Judicial Magistrate at Sealdah, Calcutta also distributed and
physically handed over the possession of the other half of the jewellery
to plaintiff no.2. The plaintiffs have suppressed the above said facts
from this Court.
19. In reply to this application it is averred that defendant No.1 is
a Trustee while the plaintiffs and defendant nos. 2 and 3 are the
beneficiaries of the Trust created under the Will of late Narender Singh
Singhi. The relationships are distinct from the relationship of executrix
and legatees under the Will. It is stated that the present suit has been
filed by the plaintiffs to ensure discharge of the executrix‟s obligation
under the Indian Trust Act, 1882. It is argued by the plaintiffs that the
jurisdiction of the probate court is only confined to examination of
genuineness of the Will but in the present case the suit involves disputed
questions of fact that could never be adjudicated in the probate
jurisdiction. It is also argued that defendant No.1 resides within the
jurisdiction of this Court and the cause of action largely has arisen
within the jurisdiction of this Court.
20. It is also alleged that in terms of Section 10 of the Limitation
Act, 1963 that there cannot be a bar of limitation when defendant No.1
as a trustee is sued in respect of the Trust. The defendant no. 1 in the
written statement has not denied the jurisdiction of this Court.
21. I have heard learned counsel for the parties. In order to
decide an application under Order VII Rule 11 the court has to confine
itself solely to the averments made in the plaint and the court should not
consider the averments made as defences in the written statement and/or
in any other pleading by the defendants. At the time of deciding the
application the Court cannot examine the correctness of the contents of
the plaint at all.
22. It is not denied by the defendants that the present suit has
been filed by the plaintiffs for mandatory injunction and in the
alternative for appointment of a Trustee against the defendants including
defendant No.1 who is to perform her obligations as a trustee with regard
to the suit properties which are moveable in nature. The defendant nos. 2
and 3 have also not denied the fact that the plaintiffs and defendant no. 1
are residing in Delhi and part of the properties are lying with defendant
no. 1 and plaintiff no. 1 even as per the report of the Local
Commissioner. The said defendants have admitted in their pleadings that
a portion of the properties is still to be divided by the defendant no. 1.
From the facts stated in the plaint, this Court agrees with the plaintiffs
that the defendant no. 1 in her capacity as Trustee is apparently distinct
from her capacity as an executrix, therefore the suit filed by the plaintiffs
is not prima facie barred by limitation.
23. The plaintiffs have invoked the jurisdiction of this court in
view of Para 21 of the plaint which reads as under:-
"Defendant No.1 resides within the territorial jurisdiction of
this court. The chain of events leading to the proposed
family meeting on September 29, 2008 which fell, took
place within the territorial jurisdiction of Delhi. A part of
suit scheduled property is in possession of defendant No.1
in her Delhi residence, thus, this court has the territorial
jurisdiction over the matter."
24. In order to decide as to whether the cause of action or any
part of the cause of action has arisen within the jusrisdiction of this
Court, it is not in dispute and even the parties were at ad idem while
considering the Order VII Rule 11 application and at this stage the Court
cannot go into the defence of the defendants/ written statement or the
documents filed by them. At this stage, as per settled law, the plaint
alone is to be seen.
25. In the case reported as Mayar (H.K.) Ltd. v. Owners &
Parties, Vessel M.V. Fortune Express,(2006) 3 SCC 100 the Supreme
Court, with regard to the scope of an application under Order VII Rule
11 observed as under :
"12. From the aforesaid, it is apparent that the plaint cannot
be rejected on the basis of the allegations made by the
defendant in his written statement or in an application for
rejection of the plaint. The court has to read the entire plaint
as a whole to find out whether it discloses a cause of action
and if it does, then the plaint cannot be rejected by the court
exercising the powers under Order 7 Rule 11 of the Code.
Essentially, whether the plaint discloses a cause of action, is
a question of fact which has to be gathered on the basis of
the averments made in the plaint in its entirety taking those
averments to be correct. A cause of action is a bundle of
facts which are required to be proved for obtaining relief
and for the said purpose, the material facts are required to
be stated but not the evidence except in certain cases where
the pleadings relied on are in regard to misrepresentation,
fraud, wilful default, undue influence or of the same nature.
So long as the plaint discloses some cause of action which
requires determination by the court, the mere fact that in the
opinion of the Judge the plaintiff may not succeed cannot be
a ground for rejection of the plaint. In the present case, the
averments made in the plaint, as has been noticed by us, do
disclose the cause of action and, therefore, the High Court
has rightly said that the powers under Order 7 Rule 11 of
the Code cannot be exercised for rejection of the suit filed
by the plaintiff-appellants."
26. In the case of Om Prakash Srivastava Vs. Union of India &
Ors, 131(2006) DLT 557 (SC), the Supreme Court has laid down the
principles to determine as to what constitutes a cause of action as under:-
"9. By "cause of action" it is meant every fact, which, if
traversed, it would be necessary for the plaintiff to prove in
order to support his right to a judgment of the Court. In
other words, a bundle of facts, which it is necessary for the
plaintiff to prove in order to succeed in the suit. (See Bloom
Dekor Ltd. v. Subhash Himatlal Desai and Ors.,
(1994)6SCC322 ).
In a generic and wide sense (as in Section 20 of the Civil
Procedure Code, 1908) "cause of action" means every fact,
which it is necessary to establish to support a right to obtain
a judgment. (See Sadanandan Bhadran v. Madhavan Sunil
Kumar, 1998CriLJ4066 ).
10. It is settled law that "cause of action" consists of bundle
of facts, which give cause to enforce the legal inquiry for
redress in a court of law. In other words, it is a bundle of
facts, which taken with the law applicable to them, gives the
plaintiff a right to claim relief against the defendant. It must
include some act done by the defendant since in the absence
of such an act no cause of action would possibly accrue or
would arise. (See South East Asia Shipping Co. Ltd. v. Nav
Bharat Enterprises Pvt. Ltd. and Ors.,[1996]3SCR405 ).
11. The expression "cause of action" has acquired a
judicially settled meaning. In the restricted sense "cause of
action" means the circumstances forming the infraction of
the right or the immediate occasion for the reaction. In the
wider sense, it means the necessary conditions for the
maintenance of the suit, including not only the infraction of
the right, but also the infraction coupled with the right itself.
Compendiously, as noted above the expression means every
fact, which it would be necessary for the plaintiff to prove,
if traversed, in order to support his right to the judgment of
the Court. Every fact, which is necessary to be proved, as
distinguished from every piece of evidence, which is
necessary, to prove each fact. comprises in "cause of
action". (See Rajasthan High Court Advocates' Association
v. Union of India and Ors., 2001 (2) SCC 294.)
12. The expression "cause of action" has sometimes been
employed to convey the restricted idea of facts or
circumstances which constitute either the infringement or
the basis of a right and no more. In a wider and more
comprehensive sense, it has been used to denote the whole
bundle of material facts, which a plaintiff must prove in
order to succeed. These are all those essential facts without
the proof of which the plaintiff must fail in his suit. (See
Gurdit Singh v. Munsha Singh, [1977]2SCR250 ).
13. The expression "cause of action" is generally understood
to mean a situation or state of facts that entitles a party to
maintain an action in a court or a tribunal; a group of
operative facts giving rise to one or more bases of suing; a
factual situation that entitles one person to obtain a remedy
in court from another person. (See Black's Law Dictionary).
In Stroud's Judicial Dictionary a "cause of action" is stated
to be the entire set of facts that gives rise to an enforceable
claim; the phrase comprises every fact, which if traversed,
the plaintiff must prove in order to obtain judgment. In
"Words and Phrases" (4th Edn.) the meaning attributed to the
phrase "cause of action" in common legal parlance is
existence of those facts, which give a party a right to
judicial interference on his behalf. (See Navinchandra N.
Majithia v. State of Maharashtra and Ors.,
AIR2000SC2966)."
27. It is settled law that the plaintiff is a dominus litus i.e. master
of or having dominian over the case. He has the right to have a „forum
conveniens‟ by approaching the court where part of cause of action
arises. His actions must be directed towards such a forum unless
approaching the said forum is opposed to public policy or will be an
abuse of the process of law. The plaintiff has every right to choose the
forum best suited to him. No doubt, the plaintiff during the trial has to
prove that the court has territorial jurisdiction after producing evidence
in this regard. At this stage in the present matter, prima facie it cannot be
said that this court lacks the inherent jurisdiction to entertain the suit.
28. Considering the averments made in the plaint and the facts
and circumstances of the present case, prima facie it appears that there is
no force in the contentions of the defendant nos. 2 and 3 and this Court
has the territorial jurisdiction to entertain and try the suit. In any case, as
per averment made in the plaint, it appears that a part of the cause of
action has definitely arisen within the jurisdiction of this Court. IA No.
3213/2009 is therefore disposed of as rejected.
29. In the second application being IA No.3240/2009 filed by the
plaintiff under Section 151 CPC it is stated that in view of the facts
stated in the plaint, the defendant No.1 has to perform her obligations as
the Trustee of the suit properties i.e. the items of jewellery listed in
Schedule A to the plaint and curios and antiques listed in Schedule B to
the plaint. Alternatively, prayer has been made for appointment of a
retired High Court Judge as a trustee in place of defendant No.1 to
discharge her duties of trustee in terms of the Will of late Sh. Narendra
Singh Singhi.
30. It is contended in the application that the Defendant No.1 has
not discharged her obligation as a trustee with respect to distributing the
curios and antiques in accordance with the terms of the Will and portion
of the said property was brought by defendant No.1 to Delhi when she
permanently shifted to Delhi in the year 1995. The items lying at the
Delhi residence of the Defendant No.1 and at the residence of Plaintiff
No.1 are shown in Schedule D of the plaint and have been inventorised
by Mr. Amit Sethi, Local Commissioner appointed by this Court vide
order dated 16.12.2008. Since Defendants No.2 & 3 did not attend the
meeting called by the Defendant No.1 despite of issuance of letters, no
partition/distribution of the said property could take place and it seems
that due to her advanced age and failing health, defendant No.1 has lost
her authority and command to prevail over the unwilling Defendants
No.2 & 3 and to have any effective distribution done. Therefore, prayer
has been made in the application for appointment of another trustee in
place of Defendant No.1. It is also mentioned in the application that
despite of the second visit of the Local Commissioner at Calcutta at the
residence of Defendants No.2 & 3, the Local Commissioner did not find
several invaluable items which were to be at the joint family home
which were left by the defendant no. 1 thereat when she moved to Delhi
in 1995 and many items were not traceable during the visit of the Local
Commissioner.
31. No reply to this application has been filed by the Defendant
No.1. The application is only opposed by Defendants No.2 & 3 inter
alia on the following grounds:
(a) That the present suit has been filed by the Plaintiffs admittedly
for appointment of a trustee in place of Defendant No.1.
(b) The suit itself is not maintainable as the subject matter of the
suit is a Will which has been probated under the Succession
Act, 1925.
(c) The present suit has been filed with mala fide intention by the
Plaintiffs in order to harass the Defendants No.2 & 3 and to
enrich themselves with those properties which were handed
over to the Defendants No.2 & 3 as their half share of the
estate of late Sh. Narendra Singh Singhi.
(d) The only remedy that lies with the Plaintiffs is to approach the
High Court at Calcutta which has granted the probate even if
the Defendant No.1 intends to discharge her duty in view of
the Will which has already been probated on 12.03,1970. It is
contended that as per order dated 12.03.1970 passed by the
High Court at Calcutta in the probate proceeding the
Defendant No.1 was required to make an inventory of the
properties within six weeks from the date of grant of probate
and render true accounts of the property and credits of late Sh.
Narendra Singh Singhi within one year. The Defendants No.2
& 3 have denied that any oral partition of the jewellery
effected between Plaintiff No.2 and Defendant No.3 took
place as alleged. On the contrary, it is stated that a real
physical partition of the jewellery had been effected and the
same had been duly handed over as would appear from the two
declarations dated 31st March, 1969 and 31st March, 1975
made by the Defendant No.1 as the executrix of the Will. It is
also stated that some of the jewellery was given to the
Defendant No.3 in view of the said declaration of 1969 by the
Defendant No.1 on behest of the Plaintiffs.
32. It is mentioned in the reply that defendant Nos. 2 and 3 were
never informed about the purported meeting on 29.9.2008. It is also
denied that any letter dated 3.10.2008 was given to defendant nos. 2 and
3 as alleged in the plaintiffs‟ application.
33. Defendant No.2 and 3 have submitted in their written
statement that except for item Nos. 4, 5 and 6 (a) in Schedule B to the
plaint all other properties mentioned in Schedule A as well as Schedule
B stand divided and physical possession entrusted, therefore, in view
thereof the suit has already become infructuous and is liable to be
dismissed.
34. It is argued by the plaintiffs that defendant Nos. 2 and 3 did
not respond to defendant no. 1‟s letters nor have they insisted before the
Local commissioner to make the statement to the effect that partition has
partially taken place. The defendant Nos. 2 and 3 have not produced any
proof whatsoever to show that the said items were divided and they have
to explain the implication of their statement i.e. as to why the item Nos.
4, 5 and 6-A which are the most valuable items in the entire set of curios
and antiques have been left un-partitioned if all the other items could be
partitioned. According to the plaintiffs these circumstances establish
that physical partition of the properties has not taken place.
35. According to the plaintiffs, as per the Will the defendant No.1
had the discretion in terms of time to decide when the division of curios
and antiques would take place. The plaintiffs had reminded the
defendant No.1 several times to complete her duties under the trust but
on 3.10.2008 when the defendant No.1 formally informed the defendants
that she may not be able to carry out the discharge of her functions as a
trustee, then the inability of defendant No.1 in physically handing over
the possession of the respective shares of the jewellery belonging to
plaintiff No.1 surfaced.
36. The main contention of the defendant No.1 who is the mother
is that after her husband‟s death the defendant No.2 started looking after
the joint family properties and managing the affairs of the family
including preparing all necessary documents and also obtained her
signatures from time to time whenever it was stated to be required. She
stated that as a mother she placed full reliance on her elder son and used
to sign various papers and declarations from time to time for tax
purposes. Since the actual division did not take place in 1969, the same
was not brought before the High Court of Calcutta in the proceedings for
grant of probate. According to her the defendant No.2 insisted that the
division should take place only after the plaintiffs moved into a
permanent residence of their own in Delhi. The plaintiffs were
thereafter staying at one place or another and it was only in 2001 that the
plaintiffs moved to their present residence at Kapashera Estate.
37. As per defendant No.1, the curios, antiques and jewellery
including items No.4, 5 and 6 (a) were always in the family safe under
lock and key which was handed over to defendant No.2 when the
defendant No.1 left for Delhi and, therefore, the defendant No.2 alone
could explain the absence of the said items from the safe.
38. Learned counsel for the defendants No.2 and 3 have argued
that the relief sought by the plaintiffs in the application under Section
151 CPC cannot be granted at this stage as the main relief sought in the
plaint is the same as prayed for in the present application. In support of
his submission he has referred to the decision of the Supreme Court
reported in 1995(3) SCC 257 being Bank of Maharashtra vs. Race
Shipping and Transport Co. Pvt. Ltd. & Anr. wherein it has been held
that the Court should deprecate the practice of granting interim orders
which practically give the principal relief sought in the petition for any
better reason than that a prima facie case has been made out without
being concerned about the balance of convenience etc.
39. Section 83 of the Indian Trust Act, 1882 (hereinafter referred
to as Act) 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". Further, Section 95 of the
Act provides for relief to a beneficiary who is deprived of his/ her
interest.
40. The learned counsel for the plaintiffs has referred to Section
6(v) and (vi) of the Indian Trust Act, 1882 which postulates that the trust
of immoveable property could be created when the author of the trust
indicates with reasonable certainty by any word or acts (a) the intention
on his part to create thereby the trust (b) purpose of the trust (c) the
beneficiary and (d) trust property and transferring the trust property to
the trustee. Section 49 of the Act lays down that where the discretionary
power conferred on the trustee is not exercised reasonably and in good
faith such power can be curtailed by the court of principal civil court of
original jurisdiction. Section 59 of the Act also gives the right to sue for
execution of the trust. Under Section 60, the beneficiary has the right
that the trust property is to be protected. Learned counsel for the
plaintiff has also cited the decision reported in K.R. Patel v. CIT, (1999)
7 SCC 26 (paragraphs 6 and 22) in support of his submission which read
as under:
"6. Against the order of the Income Tax Officer appeal was
filed before the Appellate Assistant Commissioner, who
also held that the executors and trustees were liable to be
assessed in the capacity of executors inasmuch as the
administration of the estate had not been completed. The
matter was then taken to the Appellate Tribunal. By order
dated 16-7-1971 the Appellate Tribunal held that the
income ought to have been assessed in the hands of the
executors and trustees as trustees and in any case the
executors and trustees had shed their characters as executors
and acquired that of trustees on 5-4-1963 when probate was
granted. The Appellate Tribunal further held that even
otherwise the position was that the whole estate including
the immovable properties and the amount suggested to be
distributed by way of legacy had vested in the executors and
trustees as trustees and thus the income of the immovable
properties specifically bequeathed and of assets sufficient to
pay off the monetary legacies and the outstanding estate
duty would be assessable in their hands in their capacity as
executors while the income from the remaining assets
would be assessable in their hands as trustees. The
Appellate Tribunal accordingly directed to make fresh
assessment in the capacity as trustees.
22. Examination of the provisions of law and decisions in
the aforesaid cases does not lead us to lay any rule of law as
to when an executor sheds his character as an executor and
when wears the robes of a trustee. It all depends on the
construction of the will as to when the testator desired the
trust to come into being. For that we have also to see as to
when the functions of the executor administering the estate
of the testator come to an end. Under Section 302 of the
Succession Act, 1925 when probate in respect of any estate
has been granted the High Court may, on application made
to it, give to the executor any general or special directions in
regard to the estate or in regard to the administration
thereof. Section 317 of that Act imposes various duties on
the executors. Then under Section 366 the surplus or residue
of the deceased‟s property, after payments of debts and
legacies, shall be paid to the residuary legatee."
In view of settled law, it is clear beyond any doubt that in
case a Trustee is unable to complete his/ her duties under the Trust,
another Trustee can be appointed in his/ her place. Therefore, the suit
filed by the plaintiffs is prima facie maintainable.
41. Having considered the rival submissions made by the parties,
the question before this Court is that at this stage, what are the orders
required to be passed in the present application. This Court on
16.12.2008 has already passed orders to maintain status quo with regard
to the possession of the items mentioned in Schedule A to D annexed
with the plaint.
42. The pleadings in the other applications being application for
injunction under Order XXXIX Rules 1 & 2 as well as application for
vacation of the injunction in application under Order XXXIX Rule 4 are
also complete. However, the said applications are yet to be heard on
merit.
43. It appears from the objections filed by the defendant nos. 2
and 3 to the report of the Local Commissioner that the said defendants
have admitted that there are some items which are yet to be partitioned
i.e. item Nos. 4, 5 and 6 (a) of the Valuer report dated 11.7.1969
mentioned in Schedule B to the plaint. Defendant nos. 2 and 3 have also
stated that certain items are lying with in Delhi and physical possession
thereof is yet to be effected.
44. It is matter of record that both the Local Commissioners filed
their respective reports by giving the details of items lying with the
plaintiffs and defendants. A perusal of the respective reports of the Local
Commissioners reveals as following :
A. Mr. Amit Sethi, Advocate (Ist Local Commissioner)
EXECUTION OF COMMISSION AT 18, KAPASHERA
ESTATE, NEW DELHI AT THE RESIDENCE OF THE
PLAINTIFFS
I. One Painting (the detail of which is as under :
1 Painting of Mughal Era showing some
Queen/Princes, admeasuring about 20" x 24"
bound in wooden frame.
II. Five Stone Sculptures (the details of which are as under :
2. Small stone sculptures with height of 12 inches
(approx.) and with round base having numerous
idols of Lord Budha engraved in it.
1 Small stone sculpture with height of 9 inches
(approx.) having a square base and having
numerous idols of Lord Budha engraved in it.
1 Very small stone sculpture admeasuring 7" x 4"
having small idol of some God engraved in it.
1 Stone sculpture with height of 30 inches
(approx.) with round base having engraved idols
of Lord Budha on it throughout.
B. EXECUTION OF COMMISSION AT 2ND FLOOR, 4,
MUNIRKA MARG, VASANT VIHAR, NEW DLEHI AT THE
ARTICLES MENTIONED IN SCHEDULE -D
I. SIX MANUSCRIPTS (the details of which are as under:-)
2 Pink bound Persian or Arabic Manuscripts
(medium size).
1 Small black & gold bound Persian or Arabic
Manuscript.
1 Medium sized black bound (with gold border)
Persian or Arabic Manuscript.
1 Medium sized brown bound Persian or Arabic
Manuscript.
1 Red velvet bound, some Hindu Manuscript.
II. FOUR GOLD ENAMELS (the details of which are as
under:-)
1 Paper cutter with gold enamel handle.
1 Small Gold & Enamel Pendent.
1 Oval shaped gold & enamel pendent.
1 Gold & Enamel Bangle.
III. THIRTY SIX GOLD COINS (details of which are as
under:-)
18 Gold Coins (thin) from 1700-1800 AD.
2 Small Thick Gold Coins with some Arabic
Inscription.
16 Gold Coins of British Era.
IV. FIVE PAINTINGS & ONE TANKA PAINTING (details
of which are as under:-)
5 Small paintings each measuring 6" x 3" bound in
acrylic frame (of some Kings/Emperors).
1 Tanka Paining of Budha admeasuring about 20" x
30"
V. FIVE STONE SCULPTURES OF GOD/GODDESS
ETC:-
1 Pillar having 4 feet height (approx) with square
base & carving throughout.
1 Idol of God having height of 16" (approx.).
1 Idol of God having height of 18" (approx.).
1 Idol of Goddess having height of 24" (approx.).
1 Small idol of God with Ten hands having height
of 10" (approx.).
SCHEDULE - C
VI. TEN JEWELLERY ARTICLES
1 Pair choori set in gold (white metal) studded with
diamonds.
1 Pair choori set rubies in all gold.
1 Ring with square diamond.
1 Pair of earrings studded with diamonds & 2
emeralds each in gold.
1 Ring with 1 piece of ruby & small diamond in it
(in gold).
1 Pair of gold chooreys studded with small
diamonds.
1 Gold enameled Jadau armlet with pearls & parab
diamonds.
1 String of ruby beads.
1 Pair of earnings having diamonds & 2 emeralds
each (in gold & white metal)
1 Pearl string.
C. Ms. Anju Bhattacharya, Advocate (2nd Local
Commissioner)
EXECUTION OF COMMISSION AT 48/3, GARIAHAT
ROAD, KOLKATA AT THE RESIDENCE OF DEFEDNANT
Item No.6
Silver Coins - 2151
Item No.7
Item No.8
Item No.9
Silver coins numbering 1749+372 were volunteered at the end.
Schedule B
1. Indian Miniature Paintings
e. Modern copies and rag mala series
f. Miscellaneous 3
Schedule B
2. Stone Sculptures
d. Miscellaneous 1+ ½ of stupa sculpture comprising of
several broken parts
Total : 16+ ½ of stupa sculpture
Schedule B
3. Manuscripts
a. Illustrated and illuminated
Persian & Arabic 26
b. Unillustrated Persian &
SCHEDULE A
1. Jewellery 3 items mentioned in category I @ 14,
SCHEDULE B
1. Indian Miniature paintings
e. Modern copies
later rajmala series 12
2. Stone sculpture
d. Miscellaneous 1½
Total 16½
3. Manuscripts
a. Illustrated and
illuminated Persian
b. Unillustrated
Persian and Arabic 24
4. Carved enamels Nil
Ruby, diamonds
5. Old gold enamel Nil
6. Coins
a. Gold coins Nil
b. Silver coins 2151+162
(disputed by Defendants No. 2 & 3)
(disputed by Defendants No. 2 & 3)
45. The table/chart of the various items as given by the plaintiffs
is as under :
Sl. Item The number of The number of The number of
No. items that are items items
lying in Kolkata inventorised inventorised
as per the letter during the first during the
dated visit of the second visit of
21.07.2008 Local the Local
from defendant Commissioner Commissioner
no.1 to the on 22.12.2008 on 22.12.2008
Plaintiff No.1
and the
Defendant No.2
1. Jewellery Total of 41 The The
pieces [i.e., 23 Commissioner Commissioner
pieces asked only for asked for the
belonging to the items items
Defendant No.3 belonging to belonging to
and 18 pieces Plaintiff No.2. Plaintiff No.2
belonging to The defendants as well as the
Plaintiff No.2] 2 and 3 stated Defendant
that they did no.3. The
not have any. defendants 2
and 3 showed
3 items that
belonged to the
Defendant
No.3.
miniature
paintings
3. Stone 43 16 pieces and 16 pieces and
sculptures also half of a also half of a
big stoopa big stoopa
ts
Emralds,
ruby and
diamond
Enamel
7. Coins 8034 2151 3122 [i.e.,
earlier 2151
plus additional
162 silver
coins and 809
copper coins]
grants
46. As per the plaintiffs, the following invaluable items have
been found to be missing as recorded by the Local Commissioner who
visited the residence of defendant nos. 2 and 3 at Kolkata :
Item Missing numbers
Jewellery The whole of 18 pieces belonging
Stone sculptures 26 and half
Carved Emralds, ruby and diamond Whole of 10 items
Old Gold Enamel Whole of 13 items
Coins 4912
47. There are various pleas raised by the defendant nos. 2 and 3
as mentioned in previous paragraphs 17-19, 31-33, 38 of my order which
are contrary to the averments made by the plaintiffs in their pleadings,
thus in my view, all these questions are to be considered on merit at the
time of determination of the interim applications. The order of status quo
is already under operation between the parties. In any case, defendant
no. 1 if she so chooses to exercise her will of distributing the items lying
with her in Delhi between the parties can do the same on taking
permission of the Court at any point of time even in the presence of local
commissioner.
48. At this stage, it seems to me that appointment of a Trustee in
place of defendant no. 1 will serve no purpose as there are no acts to be
carried out as it is an undisputed fact that certain items which are to be
partitioned are untraceable as indicated by the Local Commissioners in
their reports and some of the missing items have also not been denied by
the parties and the pleas of the Defendants No.2 and 3 are yet to be gone
into on merit.
49. After considering the entire gamut of the dispute, at this
stage, the present application is disposed of with the directions that the
prayer of appointment of Trustee in place of defendant no. 1 will be
determined at the time of disposing of the pending application and the
necessary order would be passes depending upon the merit of the case.
49. In view of the aforesaid directions, no further orders are
required to be passed in the present application at this stage.
CS (OS) No. 2615/2008
50. List the matter before the Joint Registrar on 12.04.2010 for
directions.
MANMOHAN SINGH, J.
MARCH 11, 2010
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