Delhi High Court
Anjan Kumar Singhi & Anr. vs Ranjan Kumar Singhi & Ors. on 9 September, 2011
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.299/10 & CM Nos.8006/10, 10840/10,
19782/10
Anjan Kumar Singhi & Anr. ...Appellant through
Mr. Sudhir Chandra, Sr. Adv.
with Mr. Sandeep Mahapatra
& Mr. Aditya Ganju, Advs.
versus
Ranjan Kumar Singhi & Ors. ...Respondent through
Mr. Krishnan Venugopal, Sr.
Adv. with Ms. Nilanjana
Guha, Adv. for Respondent
Nos.1 & 2/Mr. Ranjan
Kumar Singhi & Ms. Taruna
Singhi
Mr. Amit Sibal &
Mr. Rohit M. Alex,
Advs. for Respondent
No.3/Angoori Singhi.
WITH
FAO(OS) No.300/10 & CM No.10839/10
Anjan Kumar Singhi & Anr. ...Appellant through
Mr. Sudhir Chandra, Sr. Adv.
with Mr. Sandeep Mahapatra
& Mr. Aditya Ganju, Advs.
versus
Ranjan Kumar Singhi & Ors. ...Respondent through
Mr. Krishnana Venugopal,
Sr. Adv. with Ms. Nilanjana
Guha, Adv. for Respondent
Nos.1 & 2/Mr. Ranjan
Kumar Singhi and
Ms. Taruna Singhi
Mr. Amit Sibal &
FAO(OS) No.299/10 Page 1 of 30
Mr. Rohit M. Alex,
Advs. for Respondent
No.3/Angoori Singhi.
WITH
FAO(OS) No.412/10 & CM No.10849/10
Ranjan Kumar Singhi & Anr. ...Appellant through
Mr. Krishnan Venugopal, Sr.
Adv. with Ms. Nilanjana
Guha, Adv. for Appellants
No.1 & 2/Ranjan Kumar
Sanghi & Ms. Taruna Sanghi
versus
Angoori Singhi & Ors. ...Respondent through
Mr. Amit Sibal & Mr. Rohit
M.Alex, Advs. for
Respondent No.1/Angoori
Sanghi.
Mr. Sudhir Chandra, Sr. Adv.
with Mr. Sandeep Mahapatra
& Mr. Aditya Ganju, Advs for
Respondents No.2 and 3/
Anjan Kumar Sanghi and
Usha Sanghi.
Date of Hearing : May 11, 2011
% Date of Decision: September 09, 2011
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
FAO(OS) No.299/10 Page 2 of 30
VIKRAMAJIT SEN, J.
FAO(OS) No.299/10 & CM Nos.8006/10, 10840/10, 19782/10,
FAO(OS) No.300/10 & CM No.10839/10,
1. This litigation commenced in this Court pursuant to the
filing of CS(OS) No.2615/2008 by Shri Ranjan Kumar Singhi and
his wife, Smt. Taruna Singhi, who we shall hereinafter refer to
as the Plaintiffs. The Prayers in the Plaint, inter alia, are for the
execution of a Trust allegedly created by the Will of
Shri Narendra Singh Singhi, father/father-in-law of the
Plaintiffs, Late husband of Smt. Angoori Singhi, Defendant
No.1, who is the mother/mother-in-law of the other parties.
Shri Anjan Singhi, Defendant No.2 and his wife Smt. Usha
Singhi, Defendant No.3 had filed IA No.3213/2009 under Order
VII Rule 11 of the Code of Civil Procedure, 1908 (CPC for short)
praying for the dismissal of the Suit. Since this application has
been dismissed, FAO(OS) No.299/2010 has been preferred by
Defendant Nos.2 and 3. The Plaintiffs filed IA No.3240/2009
under Section 151 of the CPC seeking an ad interim order
against the mother/Defendant No.1, inter alia, for performance
of her obligations as the sole Trustee. By the impugned Order,
the learned Single Judge directed that the prayer for
appointment of an alternate sole Trustee in place of Defendant
No.1 will be determined at the time of disposing of the other
pending application under Order XXXIX Rules 1 and 2 (IA
No.15449/2008) and the Defendants' application under Order
XXXIX Rule 4 (IA No.3214/2009). These directions have been
assailed by both the sides; by the Defendants in FAO(OS)
No.300/2010 which we see as a nebulous prayer assailing the
Order of the learned Single Judge in deferring the consideration
of the prayer in IA No.3240/2010 for directions to the
mother/Defendant No.1 for administering the alleged Trust
and/or appointing any Trustee in her stead. It would have been
appropriate for Defendant No.2 to have specifically prayed that
the said IA No.3240/2009 should have been dismissed. The
Plaintiffs have filed FAO(OS) No.412/2010 assailing the
dismissal of their application, IA No.3240/2009 with the
direction that an order should be passed whilst deciding the two
pending applications mentioned above, that is, for grant of an
ad interim injunction (Plaintiffs' application) and for vacation of
ex parte ad interim injunction (Defendants' application).
PLEADINGS OF THE PARTIES
2. The Plaint is for the passing of a mandatory injunction or,
in the alternative, for the appointment of a trustee under
Sections 49, 59 and 60 of the Indian Trusts Act, 1882. The Suit
Schedule Property are mentioned separately - (a) items of
jewellery listed in Schedule A to the Plaint to be distributed
equally between Plaintiff No.2 and Defendant No.3 and (b)
Curios and Antiques listed in Schedule B to the Plaint to be
distributed equally between Plaintiff No.1 and Defendant No.2
in accordance with the Will of the Late patriarch of the family,
namely, Late Narendra Singh Singhi. The Plaint further states
that on 13.2.1970, Defendant No.1 applied to the High Court of
Calcutta for Probation of the subject Will; Probate was granted
on 12.3.1970. Thereafter, it is averred in the Plaint that an oral
partition of the jewellery was effected between Plaintiff No.2
and Defendant No.3. Despite pleading so, it has then been
averred that Defendant No.2 had not handed over physical
possession of the jewellery in Schedule A to either of the
daughters-in-law, viz. Plaintiff No.2 and Defendant No.3. Some
of the jewellery in Schedule A is pleaded to be with Defendant
No.1 at her residence in New Delhi. The remaining items are
alleged to be located in the family house in Calcutta. We may
clarify that the Will bequeaths 48/2, Gariahat Road, Ballygunge,
Calcutta in equal share to the four daughters of Defendant No.1
(sisters of Plaintiff No.1 and Defendant No.2). The family home
has been mentioned in the Plaint as 48/3, Gariahat Road,
Ballygunge, Calcutta which is in the possession of Defendant
Nos.2 and 3. Claims as regards this immovable property have
neither been articulated in the Plaint nor argued before us.
Disputes pertaining thereto may be hit by the provisions of
Order II of the CPC. The issuance of a letter dated 16.7.2008,
addressed by Plaintiff No.1 to his mother leading up to a family
meeting proposed for 29.9.2008, has been pleaded and
specifically denied by Defendant Nos.2 and 3. Similar is the
position in respect of the mother's letter dated 3.10.2008 to the
effect that she was unable to act as the sole Trustee. The
Prayers in the Plaint read as follows:-
(a) To specifically execute the trust created by the Will
of Late Shri Narendra Singh Singhi by issuing a
mandatory injunction to the Defendant No.1 to
perform her obligations as the trustee of the suit
schedule property:
(i) with respect to the jewellery in Schedule A
by physically handing over possession of the
jewellery in accordance with the distribution
between Plaintiff No.2 and Defendant No.3
reflected in Schedule A; and
(ii) with respect to the antiques and curios
specified in Schedule B by distributing these
items in equal shares between Plaintiff No.1
and Defendant No.2 respectively and
entrusting physical possession to them in
accordance with such distribution; or
(b) In the alternative, to appoint a retired High Court
Judge as a trustee in place of Defendant No.1 to
discharge the duties of the trustee as referred to in
prayers (a)(i) and (a)(ii) above; and
(c) To have the trust executed by this Hon'ble Court
until appointment of a new trustee in place of
Defendant No.1;
(d) Award costs of the Suit to the Plaintiff and against
the Defendant; and
(e) Pass such other order/further orders that this
Hon'ble Court may deem fit and proper in the facts
and circumstances of the case.
3. The Will dated 8.6.1966, which is the fulcrum of the lis,
reads thus:-
THIS IS THE LAST WILL AND TESTAMENT OF I,
NARENDRA SINGH SINGHI son of late Babu Bahadur
Singh Singhi residing at No.48, Gariahat Road,
Ballygunge in the suburbs of the town of Calcutta.
1. I appoint my wife Smt. Angoori Singhi to be the
sole Executrix of this my Will.
2. I give devise and bequeath all my right, title and
interest in the my property known as No.48/2, Gariahat
Road, Ballygunge in the suburbs of Calcutta to my four
daughters, namely Smt. Aloke Rani Dudhoria, Smt.
Monika Singh, Smt. Kanika Parekh and Smt. Anjalika
Somany in equal share.
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 be given to the wife of my
son Ranjan Kumar after their respective marriages.
4. I bequeath my entire collection of curios and
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.
5. I give devise and bequeath all my properties,
moveables and immoveables of whatsoever nature and
wherever situate except those described in the
preceding paras and subject to payment of my debts,
liabilities and Estate Duty, if any, payable legally, to my
two sons Anjan Kumar and Ranjan Kumar absolutely in
equal share.
IN WITNESS WHEREOF, I the said NARENDRA SINGH
SINGHI have hereunto set my hand to this my Will, the
Eighth day of June, One thousand nine hundred and sixty
six.
SIGNED by the abovenamed NARENDRA
SINGH SINGHI as his last Will in the
presence of us all being present at the same
time who at his request and in his presence
and in the presence of one another have
hereunto subscribed our names as
witnesses:- Narendra Singh Singhi
Rajpat Singh Dugar.
Member of Parliament
84B, Sambhunath Pandit Street
Calcutta-20.
Anjan Kumar Singhi
48, Gariahat Road
Calcutta-19.
4. Two grounds have been raised by Defendant Nos. 2 and 3
in their IA No.3213/2009 under Order VII Rule 11 of the CPC.
Firstly, that the Suit is not maintainable as the subject Will does
not envisage the establishment of a Trust; secondly, that since
the Probate proceedings had admittedly been initiated in 1970
in the High Court of Judicature at Calcutta, legal action, as
postulated in the Plaint, is not maintainable in Delhi. Both these
legal positions are strenuously controverted by the Plaintiffs
who have, in addition, asserted that the impugned Order,
dismissing the application under Order VII Rule 11 of the CPC,
is not appealable.
IS THE DISMISSAL OF AN APPLICATION UNDER ORDER
VII RULE 11 APPEALABLE UNDER SECTION 10 OF THE
DELHI HIGH COURT ACT, 1966.
5. Any discussion on this legal nodus would entail a
discussion of Shah Babulal Khimji -vs- Jayaben D. Kania, (1981)
4 SCC 8, which essentially dealt with the availability of Letters
Patent. The dispute had its origins in Bombay where avowedly
Letters Patent was in vogue in the High Court. In stark
contradistinction, High Court of Delhi has been established by
the Delhi High Courts Act, 1966, and, therefore, Khimji may
not be attracted. Two decisions of a Five-Judge Bench of the
Delhi High Court have highlighted this important aspect, viz.
University of Delhi -vs- Hafiz Mohd. Said, AIR 1972 Delhi 102
and Union of India -vs- A.S. Dhupia, AIR 1972 Delhi 108. Hafiz
Mohd. Said was overruled by a brief Order, based on Khimji,
in Jugal Kishore Paliwal -vs- S.Satjit Singh, (1984) 1 SCC 358.
However, Paliwal does not consider or discuss whether the
jurisdiction of the Bombay High Court and other High Courts
where Letters Patent have historically held sway is identical to
the Delhi High Court and other High Courts which have been
established by an Act of Parliament. The other Five-Judge Bench
decision in A.S. Dhupia, however, still holds the field. Be that
as it may, does Khimji state so far as the dismissal of an
application under Order VII Rule 11 of the CPC is concerned? If
such an application is allowed, it will have the effect of the
dismissal of a plaint, followed by the drawing-up of a decree.
Such an order would obviously be momentous in the Khimji
mould and, therefore, appealable. But, as is so often lost sight
of, the availability of an appeal should not be confused with the
forum for the appeal. It is often argued that the appeal could
partake of the nature of a First Appeal from Order (FAO)
because Khimji, dealing with Letters Patent, clarifies that
certain orders are appealable. Thus, in the event an application
under Order VII Rule 11 of the CPC is successful, the entire
controversy can be placed before the appellate forum by way of
Regular First Appeal (RFA). In paragraph 113 of Khimji, Their
Lordships have clarified that - "most of the interlocutory orders
which contain the quality of finality are clearly specified in
Clauses (a) to (w) of Order XLIII Rule 1 and have already been
held by us to be judgments within the meaning of letters patent
and, therefore, appealable. ... There may also be interlocutory
orders which are not covered by Order XLIII Rule 1 but which
also possess the characteristics and trappings of finality in that,
the orders may adversely affect valuable right of the party or
decide an important aspect of the trial in an ancillary
proceeding. Before such an order can be a judgment, the
adverse effect on the party concerned must be direct and
immediate rather than indirect or remote". Their Lordships
went on to hold that where leave to defend is refused under
Order XXXVII of the CPC, such an order would "undoubtedly be
treated as a judgment within the meaning of letters patent so as
to be appealable to a larger Bench". Their Lordships have not
laid down that such an order should not be assailed as an RFA,
or that both remedies are avialble. This conundrum no longer
exists in view of Ajay Bansal -vs- Anup Mehta, (2007) 2 SCC 275
wherein it has been held that the "defendant in such a case can
also be left to appeal against the decree and therein challenge
the order refusing leave to defend in terms of Section 105(1) of
the Code." The Court also referred to V.S. Saini -vs- D.C.M.
Limited, AIR 2004 Delhi 219 in which it had been held that "a
revision is not maintainable against the refusal to grant leave to
defend a summary suit". It cannot be expected that a defendant
can assail such an order firstly by filing an FAO, and if
unsuccessful, can nevertheless thereafter file an RFA. Having
carefully cogitated upon Khimji, we unhesitatingly state that a
party cannot be allowed to simultaneously avail of two remedies.
There can be no cavil that an RFA has the widest amplitude and
would, therefore, provide the appropriate remedy as it would be
the most efficacious; merely because ad valorem Court Fee may
have to be paid, would not render it less efficacious. In
Kailashpati Steel Industries Ltd. -vs- Steel Authority of India,
2008 (106) DRJ 532, the Division Bench had to consider a case
where conditional leave to defend had been granted. This is an
altogether different situation for the simple reason that a decree
would not automatically follow, as is the case where leave to
defend under Order XXXVII of the CPC is denied, or where an
application under Order VII Rule 11 of the CPC is allowed. In
Liverpool & London S.P. & I Association Ltd. -vs- M.V. Sea
Success I, (2004) 9 SCC 512, the Supreme Court referred to its
decisions in K. Kamraja Nadar -vs- Kunju Thevar, AIR 1958 SC
687, Azhar Hussain -vs- Rajiv Gandhi, 1986 Supp. SCC 315,
Dhartipakar Madan Lal Aggarwal -vs- Rajiv Gandhi, 1987 Supp.
SCC 93 and Samar Singh -vs- Kedar Nath, 1987 Supp. SCC 663
and concluded that the rejection of an application under Order
VII Rule 11 of the CPC would constitute a decision of moment
since the defendant would have to unnecessarily face the
expense and anxiety of meritless litigation. Of course, the same
can be said where leave to defend under Order XXXVII of the
CPC has been allowed, but Khimji appears to set down that
such an order is not appealable. The Plaintiffs before us have
accepted that the rejection of an application under Order VII
Rule 11 of the CPC is appealable as they intend to assail the
enunciation of the law articulated in Liverpool.
Merits of the application under Order VII Rule 11
6. The Defendant relies on the following headnote in Vijai
Pratap Singh -vs- Dukh Haran Nath Singh, AIR 1962 SC 941 in
the application itself:-
9. .... By the express terms of r. 5 clause (d), the court
is concerned the ascertain whether the allegations
made in the petition show a cause of action. The court
has not to see whether the claim made by the petitioner
is likely to succeed : it has merely to satisfy itself that
the allegations made in the petition, if accepted as true,
would entitle the petitioner to the relief he claims. If
accepting those allegations as true no case is made out
for granting relief no cause of action would be shown
and the petition must be rejected. But in ascertaining
whether the petition shows a cause of action the court
does not enter upon a trial of the issues affecting the
merits of the claim made by the petitioner. It cannot
take into consideration the defences which the
defendant may raise upon the merits; nor is the court
competent to make an elaborate enquiry into doubtful
or complicated questions of law or fact. If the
allegations in the petition, prima facie, show a cause of
action, the court cannot embark upon an enquiry
whether the allegations are true in fact, or whether the
petitioner will succeed in the claims made by him. By
the Statute, the jurisdiction of the Court is restricted to
ascertaining whether on the allegations a cause of
action is shown : the jurisdiction does not extend to
trial of issues which must fairly be left for decision at
the hearing of the suit.
It is necessary to clarify that the Supreme Court was concerned
with Order XXXIII of the CPC which is a fasciculus concerning
indigent persons, but it would still remain apposite for the
approach which should be taken by the courts while dealing
with an application for the rejection of the plaint. As has been
repeatedly reiterated by the Supreme Court, such an application
has to be decided as a demurrer, that is, that the asseverations
made in the Plaint must perforce, at that stage, be taken to be
correct.
7. The learned Single Judge has relied on paragraph 12 of
Mayar (H.K.) Ltd. -vs- Owners & Parties, Vessel M.V. Fortune
Express, (2006) 3 SCC 100, which we reproduce for facility of
reference:-
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 VII 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, 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 VII Rule 11 of the Code cannot be
exercised for rejection of the suit filed by the plaintiff-
appellants.
8. Mr. Sudhir Chandra, learned Senior Counsel for
Defendant Nos.2 and 3, seeks to rely on Sopan Sukhdev Sable
-vs- Assistant Charity Commissioner, (2004) 3 SCC 137. The
Supreme Court had reiterated its consistent opinion to the
effect that for the purposes of deciding an application under
Order VII Rule 11 of the CPC, only averments in the plaint are
germane and pleas taken in the written statement are wholly
irrelevant. The Court, no doubt, further clarified that it is the
duty of the Court and the real object behind Order VII Rule 11
of the CPC, to weed out, or more importantly, snuff out
vexatious litigation. This is also the exhortation of the Apex
Court in T. Arivandandam -vs- T.V. Satyapal, AIR 1977 SC 2421
in which it was observed that clever drafting would not justify
keeping frivolous and unjustified litigation in the Court, since
that would be stressful, vexatious and expensive to the
defendant. Nevertheless, proceedings under these provisions,
we reiterate, are in the nature of a demurrer.
9. If a précis of the Plaint is to be made relevant to the
dispute before us, it would be that by his Will, Late Narendra
Singh Singhi intended to "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 be given to the wife of my son Ranjan
Kumar after their respective marriages." The Plaint pleads the
establishment of a Trust, of which the Testator had appointed
Defendant No.1 as the sole Trustee. It is the common case of
the parties that Defendant No.1 had obtained a Probate of the
said Will from the Calcutta High Court. The moot question is
whether notwithstanding the Probate, the Will creates a valid
Trust as the Plaintiffs contend. Several precedents and treatise
on the subject have been relied upon by the Plaintiffs in support
of the argument that paragraphs 3 and 4 of the Will, in fact,
create and establish a Trust. On the other hand, there is also
considerable weight in the argument of Defendant Nos.2 and 3
that the jewellery, antiques and curios had been bequeathed to
Defendant No.1 with the Testator trusting and believing that the
jewellery, curios and antiques so bequeathed will be divided
equally between Plaintiff Nos.1 and 2 and Defendant Nos.2 and
10. The learned Single Judge has obviously been disappointed
with the Plaintiffs, inasmuch as they have concealed from the
Court two Declarations of Defendant No.1. The first Declaration,
dated 31.3.1969, states, inter alia, as follows:-
7. Ever since the death of the said deceased, I have
been acting as a sole Executrix and accepted the Trust
created by the said Will dated the 8th June 1966 for
dividing the Jewellery of the said deceased as aforesaid
and have divided the same in two parts of equal share
as far as possible and have delivered one such part
comprising the Items Nos.1 to 27 of the said Valuation
Report as set out in the Second Schedule hereunder
written to the said Sm. Usha Singhi wife of Shri Anjan
Kumar to hold the same unto the said Sm. Usha Singhi
absolutely.
The Plaint similarly suppresses reference to the second
Declaration dated 31.3.1975 made by Defendant No.1 stating,
inter alia, as follows:-
7. Ever since the death of the said deceased, I have
been acting as a sole executrix and accepted the Trust
created by the said Will dated the 8th June 1966 for
dividing the Jewellery of the said deceased as aforesaid
and have divided the same in two parts of equal share
as far as possible. I had delivered vide my Declaration
dated 31st March, 1969 one such part comprising Items
Nos.1 to 27 of the said Valuation Report as set out in
the Second Schedule hereunder written to the said
Smt. Usha Singhi wife of Shri Anjan Kumar to hold the
same unto the said Sm. Usha Singh absolutely. I have
also since delivered the other such part comprising
Items Nos.28 to 51 of the said Valuation Report as set
out in the Second Schedule hereunder written to the
said Sm.Tarun Singhi wife of Shri Ranjan Kumar to
hold the same unto the said Sm. Taruna Singhi
absolutely.
11. These Declarations are prima facie indicative of the
position that Defendant No.1 had assumed the duties of the
executor as well as a trustee, bringing the dicta in CIT -vs-
Estate of V.L. Ethiraj, [1979] 120 ITR 271 sharply into focus.
The Division Bench of the Madras High Court held that the Will
with which they were concerned had authorized the Official
Trustee to act both as an executor and a trustee. Accordingly, as
soon as the executor obtained probate, the estate vested in him
as the constituted trustee; ergo, after the assessment year in
which probate was granted, the Official Trustee should have
discarded the robes of an executor and donned those of a
trustee. This view ,earlier assumed in CIT -vs- Estate of Late
Sri T.P. Ramaswami Pillai, [1962] 46 ITR 666, has been affirmed
in K.R. Patel -vs- CIT, (1999) 7 SCC 26, where Their Lordships
opined that it depends on the construction of Will as to when the
concerned persons' role and obligation novated and mutated
from that of an executor to that of a trustee. It seems to us that
this exercise cannot, in the present conspectus, be correctly and
comprehensively be completed at an interlocutory stage, in the
absence of unequivocal admissions regarding relevant facts.
12. The learned Single Judge has, however, not recorded any
opinion on the implications which would logically ensue from
the concealment of these two Declarations. In the Replication,
the Plaintiffs have made a facile denial pertaining to the
Declarations and have gone on to further plead that part of the
jewellery mentioned in the Declaration has been found by the
Local Commissioner to be in the possession of Defendant No.1.
Defendant Nos. 2 and 3 have also placed on record the Wealth
Tax Returns of Plaintiff No.2 mentioning therein the jewellery
referred to by the mother/mother-in-law, Defendant No.1 in her
Declaration. It seems to us that the Plaintiffs are blameworthy
of material suppression, and this cannot be wished away by a
self-serving statement that the Plaintiffs were not aware of the
details of their inheritance since they were not directly privy to
the probate proceedings or those with any fiscal or tax
Authorities. We cannot lose sight of the fact that Defendant
No.1 is over ninety years of age and that it is not beyond the
realm of possibility that the Plaintiffs, who are residents of
Delhi, may have placed some of the jewellery with Defendant
No.1 who, undoubtedly, is staying with their son in Delhi. What
appears to have been overlooked is that the Declarations relate
to jewellery and do not deal with the distribution of the curios
and antiques which have been bequeathed to Defendant No.1
albeit "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".
13. We may well favour the opinion that a formal Trust had
not been established by the Will and instead all the jewellery
and curios and antiques had been bequeathed to Defendant
No.1, with the expectation that she would divide them equally
between her two sons. We must, however, hasten to add that
this is not the only possible view and that the Plaintiffs' case is
also plausible. Indubitably, it will be the bounden duty of the
learned Single Judge, post Trial, to make an informed choice
between one of the two possibilities predicated on the
preponderance of evidence. However, there can be no
gainsaying that the Appellate Court is not expected to make this
choice at the stage of deciding an application under Order VII
Rule 11 of the CPC. It may be justified to repeat that at the
stage on which the lis presently stands, the Court must decide,
on a demurrer, and if this is to be done, there are certainly at
least two versions to choose from. Therefore, the impugned
Order cannot be disturbed.
DOES THE DELHI HIGH COURT ENJOY
TERRITORIAL JURISDCITION
14. Mr. Sudhir Chandra, learned Senior Counsel for
Defendant Nos.2 and 3, has repeated before us the arguments
advanced before the learned Single Judge to the effect that
since Probate had been granted by the Calcutta High Court, all
further proceedings must be filed in that Court alone. This
stand, it seems to us, overlooks the Plaintiffs' case that the Will
had established a Trust and that if this be so, Defendant No.1
must be seen to have substituted the visage of a Executrix
with that of a sole Trustee. We do not think that
Sections 300 and 301 of the Indian Succession Act, 1925, relied
upon by Defendant Nos.2 and 3, restrict jurisdiction exclusively
to the Calcutta High Court. This is especially so in view of the
fact that the alleged Trustee, namely Defendant No.1, has
uncontrovertedly shifted her residence from Calcutta to Delhi as
far back as in 1995. Furthermore, the Court is concerned only
with movable property, and the almost inflexible rules which
regulate jurisdiction so far as immovable property is concerned,
therefore, do not apply. Section 301 of the Indian Succession
Act contemplates a situation where an application is made to
suspend, remove or discharge any private executor or
administrator and provide for the succession of another person
to that office, thereby vesting in the new successor any property
belonging to the Suit. A Will does not always create a Trust.
Until a definite answer is given by the Court as to the coming
into existence or otherwise of a Trust, of which Defendant No.1
is the sole Trustee, a final decision under Section 301 cannot
obviously be given.
15. We have taken pains not to express our opinions on the
emergence of a Trust or whether Defendant No.1 had completed
all her obligations as an Executrix; or whether she had assumed
the robes of a Trustee. In our opinion, it would be impossible
for the learned Single Judge, and a fortiori ourselves, to come to
a definitive conclusion on these vexed questions without
allowing the parties the rights and benefits of a Trial.
IS THE SUIT BARRED BY LIMITATION
16. On behalf of Defendant Nos.2 and 3, it is contended that
Late Narendra Singh Singhi died in December 1967 and his last
Will and Testament dated 8.6.1966 was granted probate by the
Calcutta High Court on 12.3.1970. A decision on the limitation
question will inexorably and inevitably depend on the view
taken by the learned Single Judge vis-à-vis the establishment of
a Trust by the said Will, of which Defendant No.1 is the Trustee.
We have already held that it is not possible for the Court to
pronounce a final view on the question of whether a Trust had
not been established as contended by the Applicants/Defendant
Nos.2 and 3. Section 10 of the Limitation Act, 1963 states that
"no suit against a person in whom property has become vested
in trust for any specific purpose, or against his legal
representatives or assigns (not being assigns for valuable
consideration), for the purpose of following in his or their hands
such property, or the proceeds thereof, or for an account of
such property or proceeds, shall be barred by any length of
time." Our research has led us to Wali Mohammed -vs- Rahmat
Bee, (1999) 3 SCC 145 where Their Lordships have held that
keeping in perspective "the Explanation to Section 10 of the
Limitation Act, 1963 the respondent's father who was managing
the property has to be "deemed" to be a trustee in whom the
properties vested specifically and inasmuch as the respondent
was a donee and was not a transferee for valuation
consideration, Section 10 applies and possession could be
recovered from the defendant without any limitation as to time".
The learned Single Judge has rightly held that, prima facie, the
Plaint is not barred by limitation. This objection can only
succeed in the event that Defendant Nos.2 and 3 successfully
establish that a Trust was neither envisaged by the Will dated
8.6.1966 nor was accepted by the sole Trustee, namely,
Defendant No.1. These will be triable Issues, all of which would
be substantiated only at the Trial.
17. Reliance has rightly been placed on a decision of the
Division Bench in Maganlal Parikshawala -vs- Samson Shalom,
AIR 1938 Allahabad 197 wherein it was observed that
regardless of what "the merits of the present petition may be, it
is not a petition which in our opinion can be brought under
S. 301, Succession Act. That section deals with the power of a
High Court to suspend, remove or discharge any private
executor or administrator. Now it may be that the will named
three persons as executors but it does not follow the use of the
word "executor" in the will was correct. It appears that the will
has set up a permanent trust and that the position of these
persons named in the will was that of trustees. As they are
trustees of property for an endowment of a public temple in our
opinion the proper procedure would be to obtain sanction from
the Legal Remembrancer and take proceedings under S. 92,
Civil P.C.."
18. The primary purpose of Probate proceedings is only to
bestow the courts' imprimatur to the genuineness and
authenticity of the Will in question. The proceedings are
summary in nature and, therefore, routine and uncontested
directions can be passed under Section 302 of the Succession
Act (see Arya Parti Nidhi Sabha -vs- Om Prakash, AIR 1934
Lahore 120). Mr. Sudhir Chandra had succeeded over a decade
ago in convincing the Division Bench in Jai Krishan Srivastav -
vs- Rajeshwar Dayal, AIR 1997 Allahabad 419 that complicated
questions of title, based on the interpretation of a Will, cannot
be properly conducted in summary proceedings such as probate
under Section 301 of the Succession Act. We are in respectful
agreement with that appreciation of law. The disputes raised in
the Plaint, therefore, remain inconclusive even though Probate
had been granted by the Calcutta High Court.
19. Mr. Sudhir Chandra next contends that even if the Suit is
assumed to be maintainable and the curtain is brought down on
the provisions of the Indian Succession Act, this Court ought not
to exercise territorial jurisdiction. The fifth paragraph of the
Will devises and bequeaths all the Testator's properties,
moveable and immoveable, except those covered by the
preceding paragraph to Plaintiff No.1 and Defendant No.2 in
equal share. It appears that whilst property bearing No.48/2,
Gariahat Road, Ballygunge, Calcutta has been left to the
daughters/sisters, property bearing No. 48/3, Gariahat Road,
Ballygunge, Calcutta is in the possession of Defendant Nos.2
and 3. However, disputes ventilated in the Plaint pertain to
paragraphs 3 and 4 of the Will and not paragraph 5. The
properties covered by paragraphs 3 and 4 are moveables. Whilst
Defendant Nos.2 and 3 admit that some of the valuables covered
in paragraphs 3 and 4 of the Will were left behind in Calcutta
when Defendant No.1 left for Delhi, the Plaint states that the
entire division did not take place. Defendant No.1 supports the
Plaintiffs in this regard and the Local Commissioner's Report
evidences that some of the valuables were found in the
possession of Defendant No.1. If the Plaintiffs case to the effect
that a Trust had been created by the subject Will is accepted on
a demurrer, as it must be, whenever a court is called upon to
decide an application under Order VII Rule 11 of the CPC, the
residence of a trustee (in the present case Defendant No.1) will
be extremely relevant for the purposes of deciding territorial
jurisdiction. Even if we accept Mr. Chandra's submission that
the cause of action arose in 1970, since the time prescriptions
are irrelevant by virtue of Section 10 of the Limitation Act, and
since the Trustee as well as some part of the property in
question in the Suit is in Delhi, Courts in the Capital will be
clothed with jurisdiction. The Plaint, no doubt, asserts that the
bulk of the jewellery, curios and antiques are in Calcutta, but
this factor will not oust the jurisdiction from Delhi. This is for
the simple reason that the Plaintiffs are dominus litus and free
to choose the venue as well as the forum which they find
convenient. We come to this conclusion even though we are
mindful of the ABC Laminart -vs- A.P. Agencies, AIR 1989 SC
1239. The Plaintiffs are allegedly aggrieved with the fact that
Defendant No.1 is not discharging her duties as a Trustee.
Therefore, the cause of action clearly arises in Delhi; some of
the valuables, which are required to be distributed, are also
uncontrovertibly in Delhi. The case is governed by Section 20
(c) of the CPC and does not fall entirely in Clause (b) of that
Section. It is beyond cavil that the three contingencies
envisaged in this provision are disjunctive and, therefore,
operate in their own respective spheres [see New Moga
Transport Co. -vs- United India Insurance Co. Ltd., (2004) 4
SCC 677]. Therefore, Mr. Chandra's objection that leave has
not been obtained from the Court to sue the Defendants outside
the territorial limits of the Court is unfounded.
20. For these manifold considerations, we find no error in the
impugned Order so far as the dismissal of the application filed
by Defendant Nos.2 and 3 invoking the provisions of Order VII
Rule 11 of the CPC is concerned. As already noted, the facts as
well as the law are intricate and complicated; determination of
the Issues is possible after the conclusion of Trial.
FAO(OS) No.412/10 & CM No.10849/10
21. The learned Single Judge has, in the impugned Order,
deferred a decision on the Plaintiffs' application for appointment
of a trustee by way of replacement of Defendant No.1
predicated on her advanced age and her failure to discharge her
alleged duties as the sole Trustee. The learned Single Judge
had thought it expedient that this application should stand over
till after the arguments pertaining to the applications seeking or
vacating the temporary injunction are also heard. No useful
purpose shall be served in assailing this part of the Order since,
if we are to agree with the Plaintiffs, we can, at best, remand
the matter back to the learned Single Judge with a direction to
decide this application. This is exactly the intendment of the
learned Single Judge. Mr. Sudhir Chandra, learned Senior
Counsel for Defendant Nos.2 and 3, had drawn our attention to
the enunciation of the law by the Supreme Court which is to be
found in Bank of Maharashtra -vs- Race Shipping & Transport
Co. Pvt. Ltd., (1995) 3 SCC 257, State of Uttar Pradesh -vs-
Visheshwar, (1995) Supp. 3 SCC 590 and P.R. Sinha -vs- Inder
Krishan Raina, (1996) 1 SCC 681. These Judgments caution
courts from granting the principal relief by way of interlocutory
orders. It seems to us that if the prayer is allowed at the interim
stage on which the suit is presently stationed, the court would
be granting the principal or primary relief at an interlocutory
stage of the proceedings. We say no more since the application
is proposed to be decided along with the injunction application
filed by the Plaintiffs and the application for vacation of the
injunction filed by Defendant Nos. 2 and 3. We are also
reminded of the decision in Assistant Collector of Central
Excise, Chandan Nagar, West Bengal -vs- Dunlop India Ltd.,
(1985) 1 SCC 260 which deprecated "the practice of granting
interim orders which practically give the principal relief sought
in the petition for no better reason than that a prima facie case
has been made out, without being concerned with the balance of
convenience, the public interest and a host of other relevant
considerations." We should also not lose sight of the dictum in
Wander Ltd. -vs- Antox India P. Ltd., (1990) Supp SCC 727,
which recommends that discretion exercised by a court should
not be interfered with in an appeal unless that exercise is
manifestly perverse. This is not the case before us. We assert
that the learned Single Judge shall decide the subject
application together with the application under Order XXXIX
Rules 1 and 2 of the CPC filed by the Plaintiffs and the
application under Order XXXIX Rule 4 of the CPC filed by
Defendant Nos.2 and 3.
22. For these manifold considerations, the Appeals are
rejected. All pending applications are dismissed.
23. There shall be no orders as regards costs.
( VIKRAMAJIT SEN )
JUDGE
( MUKTA GUPTA )
JUDGE
September 09, 2011
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