Delhi High Court

Chandra Prabha (Deceased) ... vs Satish Chand Sharma & Ors on 9 August, 2016

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 9th August, 2016.

+      CS(OS) 526/2007 & IA No.3417/2016 (of D-3(a) to (d) u/O 12 R-6
       & u/O 7 R-11 CPC)

       CHANDRA PRABHA (DECEASED)
       THROUGH LR'S                              ...........Plaintiffs
                   Through: Mr. Shyam D. Nandan & Mr. Dhruv
                            Dwivedi, Advs. for plaintiff (i).
                            Ms. Maldeep Sidhu, Adv. for plaintiff
                            (iii).

                                     Versus

    SATISH CHAND SHARMA & ORS                    ..... Defendants
                  Through: Mr. Rakesh Gautam, Adv. for D-1.
                           Mr. Atul Nigam & Mr. Nikhil Jain,
                           Advs. for D-3(a) to (d).
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The plaintiff, who has since died and has been substituted by her

husband and her sons, instituted the present suit "for execution of trust under

Section 59 of the Indian Trust Act, 1882" pleading:

i) that the father of the plaintiff died on 25 th December, 1939

leaving five minor children and a widow;

ii) that the mother of the plaintiff has also since died;

iii) that the plaintiff was married at the young age of 17 years and

has no property of her own and is dependent upon her husband and

her sons;

iv) that the father of the plaintiff by his Will dated 10 th December,

1937 declared that his entire estate upon his death shall vest in five

trustees named in the Will, as legal owners, for the benefit of his

minor children and widow and the plaintiff is one of the beneficiaries

of the said Will;

v) that the said Will was probated and a certificate dated 28 th May,

1941 of probate was granted by the District Judge, Delhi;

vi) that the executors-cum-trustees though owed a duty to the

plaintiff as one of the beneficiaries of the trust property, omitted to do

so;

vii) that the Will creating a trust was concealed from the plaintiff

till about the middle of the year 1993;

viii) CS(OS) No.2166/1990 was filed for partition of the property of

the father of the plaintiff but without impleading the plaintiff as a

party thereto;

ix) that the certificate dated 28th May, 1941 aforesaid issued by the

District Judge reveals that the grantees of the probate were in the

capacity as executors according to the tenor of the Will;

x) that the said executors were under a liability to administer the

property and to distribute the same but they omitted to do so;

xi) that though under the Will the beneficial interest of the plaintiff

out of the estate of her father was not limited to any amount of money

and the trustees were mandated to make suitable provision out of the

trust for education, marriage, upkeep and support of the children but

the plaintiff has not been given any share in the property and the

plaintiff was totally neglected;

xii) that the trustees also did not take any steps to have the property

transferred in favour of the beneficiaries;

xiii) that on the contrary the trustees transferred some of the

properties vide two documents dated 12th October, 1954 and another

document dated 11th October, 1958 (on enquiry the counsel for the

plaintiff states that the said transfers were in favour of the brothers of

the plaintiff but not by the trustees but by some other persons);

xiv) that ex facie these three documents are grossly fraudulent in

nature;

xv) that the trustees were in league with the transferees of the said

three documents of deeds of transfer;

xvi) that the persons who executed the said three documents are not

among the persons appointed as trustees by the author of the trust; the

said persons namely Mr. L. Mela Ram, Mr. L. Hans Raj and Mr. L.

Hans Raj Gupta misrepresented to all concerned that they were also

among the trustees, appointed according to law;

xvii) that signatures of Mr. L. Ralya Ram whose name is mentioned

in the three documents as one of the trustee-transferors do not appear

any where in these documents;

xviii) that Mr. Prem Lal Gupta whose name figures amongst the five

trustees appointed by the author of the trust, appears to have signed

only the two documents dated 12th October, 1954 at the bottom of the

signatures of others, who misrepresented themselves as trustees--

since both the documents were unregistered, it was quite a simple job

for a fraudulent person to tamper with these documents and pass them

off as genuine;

xix) that Mr. Prem Lal Gupta, who had initially signed these

documents at the bottom as one of the trustees, appended another

signature at the top, followed by the words "for L. Ralya Ram";

xx) that in the third document dated 11th October, 1958, one of the

so-called transferees of the earlier transactions dated 12th October,

1954 namely Mr. Harish Chandra Sharma purported to act as a

delegate of Mr. L. Ralya Ram, one of the trustees--other two, who

signed as trustees, were not the trustees, appointed as such under the

law;

xxi) that all the three beneficiaries namely Mr. Harish Chandra

Sharma, Mr. Satish Chandra Sharma and Mr. Ramesh Chandra

Sharma joined in committing the breach of trust and obtained huge

advantages therefrom, without the consent of the plaintiff--they

obtained fraudulent transfers of the trust property in their respective

names in 1954 and 1958;

xxii) that the trustees have been and are guilty of breach of trust; they

did not take care to acquaint themselves with the nature and

circumstances of the property; they did not recover moneys invested

in improper securities; they defrauded the plaintiff and totally

deprived her of her beneficial interest in the trust property; they did

not obtain the requisite transfer of the trust property from the name of

the testator to their name; they did not protect the trust property for

the benefit of all the beneficiaries; instead, they have been secretly

and arbitrarily appropriating the trust property to the male

beneficiaries at the cost of the plaintiff beneficiary; the trustees have

not rendered any accounts also;

xxiii) that all the five trustees died without executing the trust;

xxiv) that inspite of best efforts, plaintiff has not been able to find out

the names and addresses of any of the heirs or legal representatives of

the demised trustees, except Bawa Dhan Singh, a legal representative

of one of the trustees namely Bawa Milkha Singh; hence, Bawa Dan

Singh is impleaded as a defendant in the suit as legal representative of

one of the demised trustees Bawa Milkha Singh;

xxv) that the trust property which is still available for being followed

for fulfilment of the purpose of the trust vis-a-vis the plaintiff

comprises of:

(a) Mercantile Building, Block E, Connaught Place, New

Delhi, in occupation of defendants No.1 to 3;

(b) Shop No.1 in Block E and Flat No.28 above this shop, in

occupation of legal representatives of Mr. Harish Chandra

Sharma;

(c) Shop No.2 in Block E and Flat No.29 above this shop, in

occupation of defendant No.1 Mr. Satish Chandra Sharma;

(d) Shop No.E-3 and Flat No.30-E, Connaught Place, New

Delhi and property known as No.14/90 and Flat No.45/90,

Connaught Circus, New Delhi, in occupation of defendant No.2

Mr. Ramesh Chandra Sharma;

(e) Shares of Triveni Engineering;

xxvi) that before his death, Mr. Harish Chandra Sharma and after his

death his legal representatives are de facto trustees / trustees de son

tort of the trust property in their occupation, possession and user;

xxvii) that similarly Mr. Ramesh Chandra Sharma and Mr. Satish

Chandra Sharma are also under obligation in the nature of trust;

xxviii) that all the deemed trustees are liable under law to account for

and restore the trust properties in their occupation to the trust for its

execution by this Court;

xxix) that the cause of action for the suit arose, when the plaintiff

discovered the instrument of trust in 1993 and soon whereafter the

plaintiff filed Suit No.1573/1996 for rendition of accounts and

injunction against her brothers and the members of their family and

which suit is still pending;

xxx) that time never runs in favour of a trustee or his legal

representatives; hence, the suit is not barred by time;

xxxi) that the suit is valued for the purpose of jurisdiction at Rs.100

crores and fixed court fee of Rs.20/- is paid on the plaint.

2. Summons of the suit were issued by the Joint Registrar. Written

statement has been filed by the four legal representatives of the defendant

No.3 Mr. Harish Chandra Sharma. Written statement has also been filed by

the defendant No.2 Mr. Ramesh Chandra Sharma. No written statement of

the defendant No.1 Mr. Satish Chand Sharma or the defendant No.4 Bawa

Dan Singh is found on record.

3. Vide detailed order dated 23rd February, 2010, applications filed by

the plaintiff for interim direction of payment of moneys to the plaintiff were

dismissed.

4. Vide order dated 8th October, 2010, the defendants No.3(a) to (d) and

the defendant No.4 were proceeded against ex-parte.

5. Finding this to be a family matter, vide order dated 3 rd March, 2011,

the parties were referred to mediation which however remained a non-

starter.

6. On 17th August, 2011, the following issues were framed in the suit:

"1. Whether the suit is maintainable in view of the grant of probate of the Will dated 10th December, 1937? OPP

2. Whether the suit is barred under the provisions of Order II Rule 2 of CPC? OPD

3. Whether the suit is without any cause of action? OPD

4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD

5. Whether the suit is barred by limitation in view of the preliminary objection no.3 of the written statement of defendant no.2? OPD-2

6. Whether the trust was not properly executed by the trustees? If so, its effect. OPP

7. Whether the trustees have committed any breach of trust?

If so, its effect. OPP

8. Whether the trustees had committed any breach against female beneficiaries by executing fabricated documents such as transfer deed etc.? OPP

9. Relief."

7. The plaintiff preferred FAO(OS) No.359-61/2010 against the order

dated 23rd February, 2010 of dismissal of the applications for interim relief

and which was dismissed on 12th August, 2011. Review Petition

No.635/2011 preferred thereagainst was also dismissed on 16th December,

2011.

8. The plaintiff filed IA No.138/2012 for amendment of the plaint and

which was dismissed on 12th March, 2014. The plaintiff also filed IA

No.15819/2011 under Order XIV read with Section 151 of Code of Civil

Procedure, 1908 (CPC) for recasting of the issues and which application was

also dismissed vide order dated 22nd August, 2014.

9. The plaintiff preferred FAO(OS) No.477/2014 against the order dated

22nd August, 2014 of dismissal of the application for recasting of the issues

and which was disposed of vide order dated 16th September, 2015 observing

that the additional issues sought are covered by the issues already framed.

10. The defendants No.3(a) to (d) filed IA No.3417/2016 under Order XII

Rule 6 CPC read with Order VII Rule 11 CPC and notice whereof was

issued.

11. The counsels have been heard.

12. I may at the outset reproduce herein below the relevant portion of the

Will dated 10th December, 1937 of Sh. Mulchand Sharma, father of the

plaintiff and the defendants No.1 to 3 and of which probate was granted.

The said portion of the Will is as under:

"I, Mulchand Sharma, son of P. Kaluram, Caste Brahman, resident of 14 Himalaya 90 Block, Connaught Circus, New Delhi am the sole owner of the property detailed below. This and other property, detailed in agreement deed dated 21.3.1936, arrived at between my self, my brothers P. Munna Lal and P. Devdatt and my nephew P. Prabhudatt is my self acquired property. By means of the said deed dated 21.3.1936 I have give away some of the properties mentioned therein to my said brothers and nephew and the remaining property mentioned below solely belongs to me and nobody else has got any right, title or interest therein.

I have grown old and one does not know when the end may come. It is therefore, necessary and proper that necessary provisions should be made for my wife, Sh. Jankidevi, my sons Harishchand, Satish Chand and Rameshchand and my daughters Chanderwati and Chandra Prabha. I, therefore, after full consideration, knowingly, willingly and in full control of my senses and without any outside influence make the last final will and arrangements to take effects after my death. So long as I am alive I shall remain the sole owner of all the moveable and immovable property which I own at present or which I may acquire hereafter and shall manage it and deal with it as I think proper but after my death all my property shall go to my sons in equal shares subject to the following conditions:-

1. After my death the whole of my property shall be managed and shall vest in the following persons acting jointly:-

1. L. Rattan Lal Gupta, Advocate Ambala City.

2. Bawa Milkha Singh, Punchkuin Road, New Delhi.

3. L. Ralya Ram Ji 2, Keeling Road, New Delhi.

4. P. Gobind Ramji, General Merchant Kasauli.

5. L. Prem Lal Gupta, Secretary Himalaya Airways Ltd., New Delhi.

for the benefit of my children who are still minors and my wife Sh. Jankidevi, and these persons shall observe the following directions to be carried out by

them.

(a) My wife, Sh. Jankidevi shall have a right of residence in my flat No.14 in 90 Block Connaught Circus, New Delhi so long as she lives but she shall have no right to interfere in the management of the property.

(b) My daughter Chanderwati is coming of age and she shall be decently and suitably married for which the above gentlemen shall make suitable provisions out of the income of my estate with at least Rs.5,000/-.

(c) Chanderwati, Harish Chander and Satish Chand are receiving education at present. The Trustees shall make suitable provision out of the income of my estate for the education, marriage, upkeep and support of all my children and my wife.

2. After three years of attaining majority each son of mine shall be entitled to receive his share of the property from the gentlemen mentioned above and they shall make all necessary arrangements for his well-being.

3. The five persons named above to manage the property shall not conjointly and in case of difference of opinion the opinion of the majority shall prevail. They can appoint any body they think to act for them for management of the property.

4. In the event of the death or incapacity or refusal of any of the five gentlemen mentioned above the remaining persons shall appoint and another person to fill the vacancy thus cause."

(emphasis added)

13. From the bare reading of the aforesaid Will, the unambiguous position

is as under:

(a) the father of the plaintiff and the defendants No.1 to 3 Sh.

Mulchand Sharma bequeathed all his properties to his three sons i.e.

the defendants No.1 to 3 in equal share, subject to the property being

vested in and managed by Mr. L. Rattan Lal Gupta, Advocate Ambala

City, Bawa Milkha Singh, Mr. L. Ralya Ram, Mr. P. Gobind Ram and

Mr. L. Prem Lal Gupta (called Trustees) for the benefit of the children

of Sh. Mulchand Sharma who were then minor;

(b) Sh. Mulchand Sharma directed the aforesaid Trustees that Smt.

Jankidevi wife of Sh. Mulchand Sharma shall have a right of

residence in Flat No.14 in Block 90, Connaught Circus, New Delhi so

long as she lives but she will have no right in the management of the

property;

(c) Sh. Mulchand Sharma directed the aforesaid Trustees that

Chanderwati (who or whose heirs have not been impleaded and to

whom no reference is otherwise made in the plaint), on coming of age

shall be decently and suitably married for which the said Trustees

shall make suitable provision out of the income of the estate of Sh.

Mulchand Sharma of at least Rs.5,000/-;

(d) Sh. Mulchand Sharma directed the aforesaid Trustees to make

suitable provision out of the income of the estate for the education,

marriage and support of the children of Sh. Mulchand Sharma and

wife of Sh. Mulchand Sharma;

(e) Sh. Mulchand Sharma directed the aforesaid Trustees that after

three years of each of the three sons of Sh. Mulchand Sharma i.e. the

defendants No.1 to 3 attaining majority, they shall be entitled to

receive their respective share of the property from the said Trustees;

(f) Sh. Mulchand Sharma empowered the said Trustees to appoint

anyone they thought fit to act on their behalf for management of the

property;

(g) Sh. Mulchand Sharma directed that in the event of any of the

said Trustees dying or becoming incapable of performance of duties

under the Will or refusing to perform the duty under the Will, the

remaining Trustees will be entitled to appoint another person to fill

the vacancy thus caused;

(h) that the only entitlement of the plaintiff under the Will of her

father Sh. Mulchand Sharma was of being educated, married and

supported out of the income of the estate.

14. It is not the case of the plaintiff that she was not educated or that she

was not married out of the income of the estate of her father Sh. Mulchand

Sharma, in accordance with the Will. The plaintiff on the contrary claims a

share in the estate of her father.

15. Once the plaintiff under the Will of her father is not found to be

entitled to any share in the estate, I fail to understand as to what is the cause

of action for the plaintiff to maintain the present suit under Section 59 of the

Indian Trusts Act.

16. Section 59 supra entitles a beneficiary, where no trustees are

appointed or all the trustees die, disclaim or are discharged, or where for any

other reason the execution of a trust by the trustee is or becomes

impracticable, to institute a suit for the execution of the trust and provides

that the Court shall, as far as possible, execute the trust until the appointment

of a trustee or new trustee.

17. However, for the plaintiff to maintain a suit thereunder, the plaintiff

has to first prove that she is beneficiary of the trust. The plaintiff herein,

though a beneficiary of the trust, even if any created under the Will

aforesaid of her father, was beneficiary only to the extent of being

„educated‟, „married‟ and „supported‟ out of the incomes of the estate of her

father.

18. The grievance of the plaintiff in the present suit is not that the benefit

to the aforesaid extent has not been given to her. The plaintiff, as aforesaid,

is reported to have died. She, in her affidavit by way of examination-in-

chief dated 13th December, 2011 disclosed her age to be of 77 years. Thus,

at the time of institution of the suit in the year 2007, she was about 73 years

of age. In the plaint, she claims to have been married at the age of 17 years

i.e. nearly 56 years prior to the institution of the suit.

19. The plaintiff, after a lapse of 56 years, cannot agitate any grievance

of, during her minority, having not been educated, maintained, married and

supported from the income of the estate of her father. The suit thus is totally

misconceived and ought not to have been entertained.

20. Though the counsel for plaintiff has not argued but I have still

considered whether the direction in the Will aforesaid to the Trustees to

"make suitable provision" "for the education, marriage, upkeep and support"

of all the "children" out of the income of the estate can be construed as a

direction to continue to "upkeep" and "support" the plaintiff even after the

plaintiff had been married or attained majority and for the lifetime of the

plaintiff.

21. In my opinion, No. The use of the word "children" is indicative of the

direction for "upkeep" and "support" being only till the „childhood‟.

Moreover, under the Will the estate was bequeathed only to the three

brothers of the plaintiff and the Trustees were directed to deliver the estate

to the three brothers of plaintiff after each of them attained majority. If the

Trustees were to be divested of the trust property upon the three brothers of

plaintiff attaining majority, the question of the Trustees continuing to

provide for "upkeep" and "support" of the plaintiff for the lifetime of the

plaintiff out of the income of the estate did not arise. This becomes further

clear from the words "for the benefit of my children who are still minor" in

the Will. The plaintiff thus could claim against the Trustees only during her

minority and not thereafter.

22. I may in this regard notice that the Division Bench of this Court in

judgment dated 12th August, 2011 of dismissal of FAO(OS) No.359-

361/2010 supra preferred by the plaintiff also observed as under:

"14. By virtue of probate, the Will got recognition of its execution and validity. In fact, there is no dispute that Will executed by Pt. Moolchand Sharma, the basis of probate, was a genuine one. The appellant is also relying upon the said Will. By virtue of the said Will, a trust was created by Pt. Moolchand Sharma with the specific task of devolving the properties on male beneficiaries namely sons of the Testator, while making a provision for the maintenance, education and marriage and residence for other family members. A reading of the Will makes it clear that the Testator Pt. Moolchand Sharma clearly and in unequivocal terms mentioned that after his death, all the properties would go to his sons in equal shares, subject to

certain conditions such as right of residence of his wife, marriage of his daughters, maintenance and education of all his children, including the appellant. The right and benefit those were to accrue to the appellant were limited to education, maintenance and marriage. The appellant got married many years before and is now stated to be aged around 80 years. That being so, all that was required to be performed by the trusties has already been accomplished qua the appellant. The trustees have already accomplished the tasks assigned to them decades before. Apparently, the trust appears to have extinguished. On this aspect as well in the trial court of Learned single judge will have to examine as to whether suit was maintainable in view of Section 59 of the Act. All this is the matter of adjudication after trial, subject to the jurisdiction of the Court."

(emphasis added)

23. Similarly, in the order dated 16th September, 2015 of the Division

Bench of disposal of FAO(OS) No.477/2014 supra preferred by the plaintiff,

it was inter alia observed as under:

"As far as the merits of the appeal are concerned, we are of the opinion that irrespective of the question as to the maintainability of the present proceeding itself, the impugned order sufficiently clarifies as to whether the additional issues sought to be included are in fact covered in the set of issues originally framed by the Court."

24. However since in both of the appeals the Division Bench was not

concerned with the aspect of very maintainability of the suit, the suit

continued to languish, burdening the board of this Court and at the cost of

other well deserving matters.

25. In fact the Division Bench in judgment dated 12th August, 2011 supra

has also observed that the plaintiff impleaded as defendant No.9 in suit

No.2166/1990 between the defendants No.1 to 3 for partition of the estate of

the father had also sought the same relief, as sought in this suit but was

declined the same vide order dated 29th May, 2007 for the reason that the

intent of the Will of Sh. Mulchand Sharma is clear; the three sons should be

the beneficiaries of the property and the entitlement of the plaintiff was only

to be educated and to be decently and suitably married from the income of

the estate of Sh. Mulchand Sharma and which had already been

accomplished. The Division Bench further observed that the plaintiff had

filed Suit No.2272/2007 based on almost similar averments and seeking

similar reliefs as claimed in this suit and which suit was also subsequently