Judgment 1. THIS is a suit brought by the heirs and legal representatives of mortgagors who failed to pay the mortgage debt, brought upon themselves a mortgage suit, submitted to a decree and thereafter unable to pay the decretal dues, adjusted the decree by transfer of the mortgaged properties so as to vest the properties fully and absolutely in the mortgagee in pursuance of a or agreement in writing. Under the said agreement, liberty was conferred on the mortgagee to transfer the properties by sale or sub-lease either in whole or in lots. After transfer of the properties the mortgagee's claim and all outgoings, costs, charges and expenses were agreed to be paid out of the proceeds of the properties and the balance left, if any, was to be divided between the mortgagors and the mortgagees in equal shares. After the lapse of nearly a quarter of a century, the mortgagee hits entered into an agreement for sale of the properties which the successors in interest of the mortgagors have challenged in this suit as an agreement for an improvident sale. 2. ON 29th August, 1919 one Sundarmull Rajgarhia and Ram Kumar Rajgarhia obtained a lease in perpetuity of certain lands, hereinafter referred to as the Bhukailash properties, situate at Kidderpore outside the original jurisdiction of this Court, consisting of a number of plots measuring in the aggregate 1414 big has more or less. On March 28, 1922 the lessees created a mortgage of certain immovable properties including the Bhukailash properties in favour of the Central Bank of India Ltd. to secure due repayment of loans and advances made or to be made by the bank. The mortgagors having made default in payment of the mortgage debt, the bank instituted a mortgage suit, being Suit No. 295 of 1924 in this Court. On April 21, 1926 a final decree for sale was passed by consent for Rs. 3,67,000/- with interest at 6% per annum. Under the terms of settlement the Receiver appointed in the mortgage suit sold two of the mortgaged properties-one in the district of Howrah and the other in Calcutta and paid the proceeds of sale to the mortgagee bank in partial reduction of the decretal sum.Pursuant to the said decree an order for sale of the mortgaged properties was made on the 13th December. 1927. 1927. In 1926 a suit being Title Suit No. 73 of 1926 was instituted in the Alipore Court for partition of the joint properties of the superior landlords, including the said Bhukailash properties. 3. IT may be stated that a suit was instituted against the mortgagors being suit No. 117 of 1928 subsequently renumbered Suit No. 27 of 1930 by the superior landlords in the Alipore Court for recovery of Rs. 91. 501/- on account of arrears of rent. 4. ON December 13, 1930 the mortgagors by a Memorandum of Agreement entered into an agreement with the mortgagee bank, the terms of which will require careful consideration for deciding the present ease. It is recited in the said Agreement that the mortgagors with a view to paying off all arrears of rent due to the superior landlords as also to help the mortgagors to liquidate their debts on the said decree, proposed certain terms to the mortgagee bank which the mortgagee bank agreed to accept. The material terms of the agreement are set out hereunder in extenso:- (i) Subject to proper sanction being obtained by the Receiver from the court of the District Judge, 24-Parganas, with the consent of or on notice to the landlords, the mortgagors will transfer their right, title and interest in the said property to the mortgagees and will execute and register necessary documents at the expenses of the mortgagors in favour of the mortgagees to eventually vest the said leasehold properties in them as full and absolute owners thereof. (ii) The mortgagees will thereafter be at liberty to sell the said property at their sole discretion either in whole or in lots or by sub-lease as the case may be and the mortgagees will also be at liberty for the purpose of sale to develop and maintain the property and let it out in any way they desire and debit all costs, charges and expenses in that connection in an account to be opened as hereinafter mentioned. (iii) Pending transfer of the property by sale or otherwise the mortgagors will hand over all papers relating to the said property to the mortgagees simultaneously with the execution of this agreement and will also personally or through their servants and agents render all reasonable facilities to mortgagees in connection with the management or disposal or dealing of the said property, the out of pocket expenses in connection with the same being paid by the mortgagees and debited in the account hereinbefore mentioned. (iv) Pending transfer of the property by sale or otherwise an account should be kept in the name of the mortgagors and the same will remain open until sale of the said property by the bank in accordance with this agreement; all costs, charges and expenses in regard to the said property until sale, namely, payment of the municipal taxes both arrears and current, putting the title to the property in order, ejecting tenants, developing the property and those of incidental to the sub-division of the property into lots or of the sale thereof, being debited to such account provided always that the mortgagees will not be liable to render any account or explanation to the mortgagors in regard to debits made in this account and that the mortgagors will not be entitled to ask for any account or to question or dispute in any way the correctness thereof. (v) It is hereby expressly agreed and understood that notwithstanding anything hereinbefore contained, the mortgagors after transfer of their right, title and interest in the said mortgaged properties will not be held liable in any way personally or otherwise for the bank's dues. (vi) After transfer of the property fully by sale or sub-lease in the manner aforesaid the mortgagees will cause an account of their claim including costs, charges and expenses hereinbefore mentioned to be made up and adjusted and if after payment of all their dues and outgoings out of the proceeds of the said property any balance is left the same will be divided between the mortgagees and the mortgagors or their nominees in equal shares provided, however, the account so to be made up by the mortgagees shall be conclusive and final. (vii) On a proper sanction being obtained by the Receiver as hereinbefore mentioned and on the mortgagors getting the terms confirmed in such way as the mortgagees will be advised by their Solicitors the mortgagees will pay the Receivers the arrears of rent now payable by the following instalments namely, by Rs. 40,000/- or such other sum as may be directed by the Court granting the sanction within a week from the date of sanction and Rs. 12,000/- annually for the next five years without any interest. The mortgagors will get the Receiver to have sanction from the Court for giving up all arrears of interest on the arrears of rent. As to the current rent the mortgagees shall pay Rs. 10,000/- every year until the said properties are fully disposed of by sale or sub-lease the balance of rent being payable in December 1934 without any interest. (viii) The mortgagors will get the Receiver to accept the mortgagees or any assignee of theirs as the tenants of the said Bhukailash estate and will record its or their or her name registered in the landlords' sherista in place of the mortgagors as tenants provided that in case of an assignment or transfer of the property as a whole the transferee or assignee is to be a respectable party and of substance. In case of sub-lease or sale in small plots upon payment of Rs. 10. 00 per cottah and otherwise complying with the provisions of the lease the Receiver will accept him or her as the case may be as a direct tenant of the landlords and to the extent of the rent reserved in the sublease will release the mortgagees or their assignee from all liability in respect of such portion of the rent. 5. THE terms agreed to between the parties were consented to by the superior landlords and were recorded in the rent suit and a consent decree was passed in terms of the said agreement. Sanction was also obtained to the said terms by an order of Court dated December 24, 1930 in the Title Suit filed at Alipore Court being Suit No. 73 of 1926. 6. Sanction was also obtained to the said terms by an order of Court dated December 24, 1930 in the Title Suit filed at Alipore Court being Suit No. 73 of 1926. 6. THEREAFTER as recited in the Deed of Assignment, in pursuance of the said agreement dated December 13, 1930 and in consideration of the mortgagee bank having agreed to realise its dues under the mortgage and the order made on 13th December, 1927 in the mortgage suit from the Bhukailash estate alone in accordance with the terms of the said agreement and without leave to proceed against the mortgagors personally or otherwise for the deficit if any, which might occur after the mortgaged properties were sold and or disposed of by the mortgagees, the mortgagors transferred and assigned to the mortgagee bank all their right, title and interest under the lease of 1919 in the said Bhukailash estate subject to the rents reserved under the said lease and the covenants and conditions contained in the same. The said Deed of Assignment provided as follows:- (i) The assignees will hereinafter enjoy the said lands here determents and premises hereby assigned respectively and deal with the same in any way they think fit and receive the rents, issues and profits thereof without any lawful eviction, interruption, claim or demand whatsoever from or by the assignors or any person or persons lawfully or equitably claiming from under or in trust for them. (ii) The assignees shall at all times during the continuance of head lease pay the rents and taxes which have already accrued due and also those payable there under. It may be added that on February 19, 1931, the Memorandum of Agreement and the Deed of Assignment were registered simultaneously. After the transfer of the Bhukailash properties by the mortgagors to the mortgagee bank, a long period of silence ensued. The silence was broken on November 19, 1943 when Messrs Dutt and Sen Solicitors for the heirs and legal representatives of the mortgagors wrote to the bank reminding them that by the agreement of December 13, 1930 the bank had undertaken to sell the Bhukailash properties. They also asked for a statement of account showing the amount of the bank's claim up to that date, the amount realised and the properties sold or otherwise dealt with. They also asked for a statement of account showing the amount of the bank's claim up to that date, the amount realised and the properties sold or otherwise dealt with. In reply Messrs Sandersons and Morgans Solicitors for the mortgagee bank, stated that the bank had been able to dispose of only 1 bigha 2 cottahs 13 chittacks 36 sq. ft. of land. They denied that under the agreement the bank had under taken to sell the properties. They pointed out that the accounts spoken of in clause 4 of the agreement was to be prepared only after the entire property had been transferred. Messrs Dutt and Sen reiterated that under the agreement of December 13, 1930 the bank was under an obligation to dispose of the property for the objects mentioned in the said agreement. As regards accounts they contended that under clause 2 of the agreement the bank was to maintain certain accounts and although final accounts could not be prepared nor was the bank accountable until the properties were disposed of in their entirety, there was no bar to their clients asking for accounts in the meantime. They also exhorted the bank to dispose of the properties without undue delay. In their reply of March 15, 1944 Messrs Sandersons and Morgans stated that the bank had been trying to sell the property, although not bound to do so but as the property consisted of bustee lands in an in sanitary condition with a large number of tanks and low tracts of lands without proper roads and occupied by people who were unwilling to vacate their huts, the bank had not been able to find any purchaser of the property either as a whole or in lots. They indicated that their clients were willing to dispose of the property provided reasonable offers were received and their dues were realised in full out of the proceeds of sale if there was any surplus left after the bank's dues had been realised, both panics were to share the benefit of the sale. In conclusion they said that although the bank was under no obligation to furnish interim accounts, as a matter of courtesy the bank had informed their Solicitors that after crediting the income of the property to the expenditure incurred by the bank there was a debit balance of Rs. 11,68,370-12 as-6 ps. as on December 31, 1943. In conclusion they said that although the bank was under no obligation to furnish interim accounts, as a matter of courtesy the bank had informed their Solicitors that after crediting the income of the property to the expenditure incurred by the bank there was a debit balance of Rs. 11,68,370-12 as-6 ps. as on December 31, 1943. By a letter dated March 23, 1944 Messrs Sandersons and Morgans reiterated that the bank was not liable to render any accounts under clause 2 of the agreement at that stage, and that accounts referred to in clause 4 were to be prepared only after the entire property had been transferred, and no such account could be prepared at that stage although the bank maintained a running account in respect of the property. 7. ON March 16, 1949 the Banking Companies Act of 1949 came into force. Section 9 of the Act provided that no banking company should hold any immovable property howsoever acquired, except such as is required for its own use, for any period exceeding 7 years from the acquisition thereof or from the commencement of that Act whichever is later or any extension of such period as that section provided and such properly should be disposed of within such period or extended period, as the case might be. A proviso to the said section provided that the Reserve Bank might in any particular case extend the aforesaid period of 7 years by such period not exceeding 5 years where it is satisfied that such extension would be in the interests of the depositors of the banking company. 8. SECTION 46 of the Act made the contravention of any provision of the Act punishable. Section 53 conferred power on the Central Government to declare that any or all of the provisions of the Act shall not apply to any banking company or to any class of banking companies. Not having sold the Bhukailash properties within a period of 7 years from the date of the commencement of the Act the defendant bank applied for extension of time for sale. Five extensions of one year each were granted by the Reserve Bank. The period as finally extended ended on 15th March, 1961. Thereafter the bank applied to the Central Government for exemption from the operation of section 9. On 15th June, 1961. Five extensions of one year each were granted by the Reserve Bank. The period as finally extended ended on 15th March, 1961. Thereafter the bank applied to the Central Government for exemption from the operation of section 9. On 15th June, 1961. before the application was disposed of by the Central Government, the bank entered into the agreement with the Martin Process Private Ltd., the defendant No. 2 for sale of the Bhukailash estate. The present litigation arose cut of this agreement for sale. During all these years, attempts to sell the property, if any, were feeble fitful and fortuitous. Messrs Sandersons and Morgans indicated in their letter of March 15, 1944 that in 1943, the bank sold 1 bigha 2 cottahs and 3 chittaks of land, not in the normal course to stranger purchasers but in course of litigation. In 1946 a plot of 16 cottahs 1 chittak was sold, may be at the initiative of the purchaser. In any case, there, is no evidence that the plot was sold at the bank's initiative. In the same year another plot of 1 bigha 6 cottahs and 2 chittaks was acquired by the Improvement Trust under the Land Acquisition Act. Thereafter all activities ceased for 10 years. In 1956 Messrs Bharat Trading Company, a firm which described itself as merchants and commission agents, an advocate, a solicitor and an indifferent broker appear to have made casual enquiries and were heard of no more. In the latter half of 1956 Gopal Collieries Ltd. made an offer to purchase the property at Rs. 675/- per cottah, that is to say, for a total sum of nearly Rs. 20 lacs, They were willing to pay Rs. 50,000/- in cash and a further sum of Rs. 2 lacs by mortgage of a colliery, by way of earnest and pay the balance from recoveries of rent to be made by the bank. They also proposal that the entire proceeds of sale of plots might be paid to the bank to expedite payment of the purchase money. The mode of payment was not acceptable to the bank as that would not only involve considerable delay in realisation of the price but also require the bank to advance moneys against mortgage of landed properties. 9. IN May, 1956 a gunny merchant offered to purchase the property at Rs. 500/- per cottah and was heard of no more. The mode of payment was not acceptable to the bank as that would not only involve considerable delay in realisation of the price but also require the bank to advance moneys against mortgage of landed properties. 9. IN May, 1956 a gunny merchant offered to purchase the property at Rs. 500/- per cottah and was heard of no more. In July, 1956 one Parimal Chandra Ghose made an offer of Rs. 20 lacs subject to approval of title by his solicitor. He was willing to deposit Rs. 1 lac by way of earnest. The sale was to be completed within 8 months from the date of production of the title deeds. The bank appears to have accepted the offer, but why the transaction was not put through, is not clear from the records nor is there any satisfactory explanation for it in the oral evidence adduced on behalf of the bank. 10. IN 1957 Pannalal Sarogi on behalf of the Financiers Ltd., offered Rs. 12 lacs for the property. He was willing to pay Rs. 2 lacs by way of earnest and the balance in 10 equal half yearly instalments. In fact, he sent a cheque for Rs. 2 lacs to be held by the bank pending confirmation of acceptance of the offer. The offer was ultimately withdrawn. In December, 1960 one Dabriwalla offered to purchase the property for Rs. 13,50,000/- on certain terms and conditions but the offer was not acceptable to the bank. Thereafter Messrs Martin's Process Ltd., the defendant No. 2, offered to purchase the property on certain terms. On March 9, 1961 the offer was accepted. The agreement was reduced into writing by an Agreement for Sale dated June 15, 1961. The agreement is the immediate casus belli, though not the only casus belli in the present litigation. The material terms of the said agreement are:- (i) The bank will assign its right, title and interest in the Bhukailash estate to the Martins Process Ltd., for the price of Rs. 15 lacs free from all encumbrances but subject to the terms, conditions and covenants contained in the lease of 29th August, 1919. (ii) It is recorded that a sum of Rs. 2,50,000/- has been paid by the assignee to the assignor as and by way of earnest and in part payment of the purchase price. 15 lacs free from all encumbrances but subject to the terms, conditions and covenants contained in the lease of 29th August, 1919. (ii) It is recorded that a sum of Rs. 2,50,000/- has been paid by the assignee to the assignor as and by way of earnest and in part payment of the purchase price. (iii) The assignment by the bank will be completed within 4 months from 9th March, 1961. (iv) The assignor is to make an advance to the assignee up to a limit of Rs. 12,50,00/ - against equitable mortgage of the property to be assigned, and upon the joint several and personal guarantee of Ram Chandra Karnani, Indra Prakash Karnani and Tolaram Karnani and also on the guarantee of Messrs Okayti Tea Co. Ltd. The said advance will carry interest at the rate of 1% per annum over the Reserve Bank rate with a minimum of 5% per annum payable with half yearly rests. (v) The assignee shall repay the said sum of Rs. 12,50. 000/- to be advanced by the assignor by yearly instalments of Rs. l,25,000/- each besides interest as and when due. The first of such instalments to be paid at the end of 12 months from the date of such assignment. (vi) Over and above the said yearly instalment of Rs. 1,25,000/- with interest the assignee shall pay an additional sum of Rs. 50,000/- by the end of December, 1961. (vii) Notwithstanding anything contained therein, the assignor shall have the right to demand at any time payment of the entire amount then remaining due and outstanding together with interest and the assignee shall pay the sum on demand. (viii) Subsequent to the assignment and so long as the money or any portion thereof advanced by the assignor remains due the assignee shall maintain an account with the assignor and shall deposit all income arising out of the property to be assigned in the said account and all disbursement relating to the said property shall be made there out. The balance, if any, shall be transferred at the end of six months in reduction of the advance of Rs. 12,50,000/- and interest accrued thereon. 11. AFTER exchange of letters in 1944 between Messrs Dutt and Sen and Sandersons and Morgans correspondence between the parties had completely ceased. On March 1, 1961 Mr. The balance, if any, shall be transferred at the end of six months in reduction of the advance of Rs. 12,50,000/- and interest accrued thereon. 11. AFTER exchange of letters in 1944 between Messrs Dutt and Sen and Sandersons and Morgans correspondence between the parties had completely ceased. On March 1, 1961 Mr. T. C. Pyne, Solicitor for the Rajgarhias enquired of the bank how the matter of sale stood and what was proposed to be done to expedite the sale. Further correspondence followed. On April 21, 1961 Messrs Charu Chandra Basu stated on behalf of the bank that under the agreement of December 13, 1930 the management and disposal of the estate was vested in the bank and accordingly necessary steps were being taken. On 19th May, 1961 Mr. Pyne enquired if the bank would intimate the state of accounts maintained by the bank under the agreement and furnish a copy of the abstract of accounts. On May 30, 1961 the bank's solicitors Messrs Sandersons and Morgans relied on the provisions of the agreement and contended that their client was not accountable to Mr. Pyne's clients and was under no obligation to render accounts. They also contended that Mr. Pyne's clients were not entitled to any information and made it clear that under the agreement the bank had complete discretion in the matter of sale. By a letter dated June 28, 1961 Mr. Pyne contended that under the agreement of December 13, 1930 the bank had become a trustee for the specific purpose of sale of the property. He claimed that the agreement must be carried out within a reasonable time. In conclusion, he expressed the apprehension that Messrs Sandersons and Morgans' clients might dispose of the property at an undervalue and gave them notice that if they did so they would be held liable for the consequences. On July 10, 1961 Mr. T. C. Pyne intimated to Mr. Ram Chandra Karnani that it had been reported to his clients that the Central Bank of India were attempting to sell the property to him or to some corporation represented by him at a gross undervalue and that if the intending purchaser purchased the property at a grossly inadequate price, he would be deemed to be acting collusively and wrongfully and would be held liable for the consequences. It will be remembered that Ram Chandra Karnani was one of the proposed guarantors under the agreement into which the bank had entered with the defendant No. 2. 12. ON July 23, 1961 the plaintiffs instituted this suit against the Central Bank of India Ltd., for construction of the deed dated December 13, 1930, ascertainment of the rights of the parties, administration of the trust created in respect of the Bhukailash properties in terms of the said deed, for accounts and for an injunction restraining the defendant bank from dealing with or disposing of the said estate. Subsequently, by an amendment of the plaint they added Martins Process Industries Private Ltd., as the second defendant and inserted a prayer for a declaration that the agreement for sale dated July 13, 1961 is void and not binding on the plaintiffs and the same be delivered up for cancellation. They also added a prayer for enquiry and for damages found payable to the plaintiffs on such enquiry. Thereafter, on the plaintiffs' application an order of injunction was made on July 25, 1961 by G. K. Mitter J. restraining the defendant No. 1 from dealing with or disposing of the said properties in any way. 13. PARAGRAPHS 1, 2, 3, 4, 5 and 6 of the plaint relate to the history of the Bhukailash estate. In paragraph 1 Sundarmull Rajgarhia and Ram Kumar Rajgarhia are described as the owners of the estate. There is no dispute that they were only lessees in perpetuity under the lease of August 29, 1919. It is stated that the owners created a mortgage of the said estate in favour of the defendant bank by deposit of title deeds and the mortgagee instituted a mortgage suit in which a decree for sale was passed by consent. In paragraphs 7 and 8 the agreement of December 13, 1930 and the Deed of assignment of February 12, 1931 are pleaded. In paragraph 9 it is said that possession of the property was made over to the defendant bank by the mortgagors in pursuance of the said deeds for the purpose of carrying into effect the terms of the deed of December 13, 1930. In paragraph 9 it is said that possession of the property was made over to the defendant bank by the mortgagors in pursuance of the said deeds for the purpose of carrying into effect the terms of the deed of December 13, 1930. In paragraph 10 the plaintiffs contend that in the premises the defendant bank became the trustee for sale of the Bhukailash estate under the terms and for the objects as set out in the said deed of December 13, 1930. The same contention is reiterated in paragraphs 29 and 30. In paragraph 11 it is stated that the plaintiffs are the heirs and legal representatives of Sundarmull Rajgarhia and Ram Kumar Rajgarhia. Paragraphs 12 to 21 refer to the correspondence between the parties' solicitors and the respective contentions they raised in their correspondence. In paragraph 22 it is said that the defendant bank has failed to comply with the terms of the said deed dated December 13, 1930 and to render accounts. In paragraph 23 it is contended that the defendant bank stands in fiduciary relationship with the plaintiffs. As such the defendant bank was and is the trustee for sale of the Bhukailash estate for the objects mentioned in the said deed of December 13, 1930 for the benefit of the plaintiffs. In paragraph 24 it is alleged that the defendant bank as trustee has committed breaches of trust, namely : (i) It has not maintained proper accounts in terms of the said deed of December 13, 1930. (ii) It has failed to furnish or to render accounts. (iii) It has not exercised due care and skill as a trustee for the sale of the estate. (iv) It is guilty of willful default and gross negligence. (v) It has not developed the property to the extent contemplated in the said deed. (vi) It has committed waste and caused loss to the properties. (vii) It is denying that the plaintiffs are the beneficiaries under the said deed. (viii) It is guilty of laches. It has not accounted for large sums of money being the income of the said properties. (ix) It has failed to discharge its duties as trustee for sale within a reasonable time. (vii) It is denying that the plaintiffs are the beneficiaries under the said deed. (viii) It is guilty of laches. It has not accounted for large sums of money being the income of the said properties. (ix) It has failed to discharge its duties as trustee for sale within a reasonable time. In paragraphs 25 and 26 it is said that the defendant bank failed to render accounts of their dealings with the said property in terms of the deed dated the 13th December 1930 and are denying the plaintiffs' right to enforce the said terms. In paragraph 27 it is stated that if an account is taken between the parties, nothing will be found due and payable to the defendant bank. On the other hand, large sums of money will be found due and payable by the defendant bank as the trustee to the plaintiffs. In paragraph 28 it is said that although the dues of the defendant bank and of the landlord have been or ought to have been realised, the defendant bank is threatening to alienate the said estate at a gross undervalue in breach of the terms of the said deed of December 13, 1930. In paragraph 31 the plaintiffs claim that they are entitled to administration of the trust for sale. In paragraph 32 it is said that unless the defendant bank is restrained by an injunction from dealing with or disposing of the said properties in breach of the said trust, the plaintiffs will suffer irreparable loss and injury. In paragraph 32 (a) introduced by an amendment, it is pleaded that the plaintiffs have come to know that by an agreement in writing dated June 15, 1961 the defendant No. 1 has entered into an agreement for sale of the said estate to the defendant No. 2 at a grossly inadequate price in utter breach of the said trust for sale. I might add that in paragraph 11 of the plaint, as it originally stood, the plaintiffs contended that in the alternative the defendant is a mortgagee in possession. Moreover, in paragraph 34 they claimed that as mortgagors they are; entitled to restoration of the properties. There was also a specific prayer for a declaration that the defendant bank is the trustee for sale of the said estate. Those paragraphs as also the declaratory prayer have been deleted by an amendment of the plaint. Moreover, in paragraph 34 they claimed that as mortgagors they are; entitled to restoration of the properties. There was also a specific prayer for a declaration that the defendant bank is the trustee for sale of the said estate. Those paragraphs as also the declaratory prayer have been deleted by an amendment of the plaint. 14. BY their written statement the defendant bank contended that the Court has no jurisdiction to try the suit because the suit relates to land situate outside its local limits. They also pleaded the bar of limitation. They denied that they stood in a fiduciary relationship to the plaintiffs or that they are trustees for sale of the said properties for any of the objects mentioned in the said deed of December 13, 1930. They denied that in any event, they have committed any breach of trust as alleged or at all or that they have failed to comply with the terms of the said deed. The plaintiffs, they submitted, are neither the beneficiaries nor have they any interest in the said land under the said deed. They denied that they have not maintained any account but at the same time contended that they are not liable to render accounts. They denied that their dues had been realised in full or that on taking of accounts any sum of money would he found due to the plaintiffs. They denied that the transfer of the said properties to the defendant No. 2 in terms of the agreement for sale dated June 15, 1961 would be in breach of the terms of the deed of December 13, 1930 or that they intended to transfer the said property at a gross or any undervalue. They denied the plaintiffs' right to claim administration of the said property. The defendant No. 2 in its written statement stated that the defendant no.1 as the assignee of the right, title and interest of the mortgagors in. They denied the plaintiffs' right to claim administration of the said property. The defendant No. 2 in its written statement stated that the defendant no.1 as the assignee of the right, title and interest of the mortgagors in. the said estate, had the right to enter into the said agreement for sale dated June 15, 1961 and has done so for a reasonable and adequate consideration It disputed that the said agreement is collusive, and supported the defendant No. 1 in its contention that the defendant No.1 is not a trustee for sale and the assignment in favour of the defendant No.1 was an absolute transfer The defendant No.2 further contended that after the execution of the deed of assignment dated February 12, 1931, the deed of December 13, 1930 ceased to be in force. The plaintiffs, it was contended, have no cause of action against the defendant No.2. 15. THE following issues were raised at the trial:- 1. Are the plaintiffs Nos. 1 to 18 the legal representatives of Sundarmull Rajgarhia and are plaintiffs Nos. 19 to 24 the legal representatives of Ram Kumar Rajgarhia as stated in paragraph 12 of the plaint ? 2. Did the first defendant by virtue of the deeds dated 13th December, 1930 and 12th February, 1931 become the trustee for sale of the properties in suit. 3. Does the agreement dated 13th December, 1930 remain alive and operative after the execution of the assignment of the lease dated 12th February, 1931. in favour of the defendant No. 1 4. Did the first defendant in the alternative become the mortgagee in possession of the said properties under the deeds dated 13th December, 1930 and 12th February, 1931 ? 5. Has the first defendant committed any breaches of trust particulars whereof have been set out in paragraph 25 of the plaint ? 6. Is the sale proposed under the agreement in writing dated 15th June, 1961 a sale at a grossly inadequate price or in breach or violation of the terms of the deed dated 13th December, 1930 ? 7. Have the plaintiffs suffered any loss or damage by reason of any act of the defendants ? 8. Will the plaintiffs suffer any loss or injury if the agreement for sale dated 15th June, 1961 is left outstanding ? 9. Has the Court jurisdiction to entertain the suit. 10. 7. Have the plaintiffs suffered any loss or damage by reason of any act of the defendants ? 8. Will the plaintiffs suffer any loss or injury if the agreement for sale dated 15th June, 1961 is left outstanding ? 9. Has the Court jurisdiction to entertain the suit. 10. Is the plaintiffs' claim barred by limitation ? 11. Is the suit premature 12. Have the plaintiffs any cause of action ? 13. To what relief, if any, are the plaintiffs entitled ? in view of the amendment of the plaint by which paragraph 11 of the original plaint was deleted, issue No. 4 did not arise and counsel rightly dropped it. 16. ON the question whether the plaintiffs are the heirs and legal representatives of the original mortgagors there was no serious dispute. The issue was raised only because counsel did not consider it safe to concede it. Be that as it may, one Jainath Sahay, an old employee of the plaintiffs, by his evidence established that the plaintiffs pre the only heirs and legal representatives of Sundarmull Rajgarhia and Ram Kumar Rajgarhia. No contrary evidence was led on behalf of the defendants. In these circumstances, I answer issue No. 1 in the affirmative. One of the basic questions which has to be decided in this case is whether by the combined operation of the deeds of December 13, 1930 and February 12, 1931 the defendant bank became a trustee for sale of the Bhukailash properties for the purpose and objects specified in the earlier deed. Mr. Das, on behalf of the defendant No. 1, submitted that the Deed of Assignment does not say so. It effected a full and absolute transfer of title without any condition attached to it. 17. HE contended that in construing the Deed of Assignment one must look into the deed alone. It is not legitimate to import the provisions of an antecedent document and limit the amplitude of the Deed of Assignment by which the assignee became the full and absolute owner of the property, so as to annex obligations to the assignee's ownership. The deed speaks for itself and ought to have full effect. Mr. Das relied on the decision of the Judicial Committee in (1) Wadia v. Secretary of State 56 I. A. 51. The deed speaks for itself and ought to have full effect. Mr. Das relied on the decision of the Judicial Committee in (1) Wadia v. Secretary of State 56 I. A. 51. In that case a Deed of Grant after reciting that the grantee had prayed that a Government grant which he enjoyed might be exchanged for a grant of certain villages declared that the villages "are hereby assigned to you and your heirs in perpetuity". The Judicial Committee held that the trial Judge had been in error in construing the deed in the light of the antecedent correspondence between the parties, it being well settled that a formal antecedent contract cannot be looked at to control the terms of a conveyance. In course of the judgment, Viscount Dunedin said : "the only reference to the correspondence is in the narrative in the preamble of the deed, that there had been such a correspondence, but it is a vital mistake to suppose that that introduces the correspondence as a part of the deed. Nothing is better settled than that when parties have entered into a formal contract, that contract must be construed according to its own terms and not be explained or interpreted by the antecedent communing which led up to it. This is especially true of conveyance. There even, if there has been a formal antecedent contract, that contract cannot be looked at to control the terms of the conveyance; much less earn mere communing which can only show what parties meant to do but cannot show what they did. " 18. IN the present case, the Memorandum of Agreement of December 13, 1930 is not merely recited in the preamble. There is an express statement in the Deed of Assignment that in pursuance of the said Agreement the assignors transfer and assign unto the assignees all their right, title and interest in the property. It is also stated that the properties are being assigned in consideration of the assignees having agreed to realise their dues from the mortgaged properties alone in accordance with the terms hereinbefore mentioned. A perusal of the deed will indicate that the terms hereinbefore mentioned mean the terms mentioned in the Memorandum of Agreement. It is also stated that the properties are being assigned in consideration of the assignees having agreed to realise their dues from the mortgaged properties alone in accordance with the terms hereinbefore mentioned. A perusal of the deed will indicate that the terms hereinbefore mentioned mean the terms mentioned in the Memorandum of Agreement. In my opinion apart from all other considerations, by these statements, the purpose and object of transfer are clearly indicated and the terms of the Agreement are imported into the conveyance. Mr. Das relied on (2) Lee v. Alexander (H. L.) 8 A. C. 853. In that case a Deed of Disposition recited how the transferors had come by the properties and how they had dealt with them. Then followed the dispositive clause which read : "therefore, in consideration of the sum of 100 1. now paid to us, the said It. Mackie and A. M. Dunlop, by the said J. B. Lee on account of the prices of the said subjects purchased by him from us as said is, and of the agreement made by me, the said Claud Alexander with the said J. B. Lee for the purchase of the said superiorities, we, the said It. Mackie and A. M. Dunlop so far as regards the tends, the superiority of which was vested in our constituents as before-mentioned, and I the said Claud Alexander, so far as regards the subjects, the superiority of which is vested in me as before-mentioned, do hereby dispose to the said J. B, Lee. " 19. ALEXANDER adduced evidence to show that the land in question was mis-described in an earlier deed and that it did not belong to the estate which he had transferred to Lee by the Deed of Disposition. He also sought to refer to previous correspondence which showed what the contract was. Lord Watson, in his speech said "i do not think, there is any ambiguity in the language of the disposition of December, 1879 which can justify a reference for the purpose of controlling that language to an antecedent agreement between the appellant and the respondent. He also sought to refer to previous correspondence which showed what the contract was. Lord Watson, in his speech said "i do not think, there is any ambiguity in the language of the disposition of December, 1879 which can justify a reference for the purpose of controlling that language to an antecedent agreement between the appellant and the respondent. Nor do I think that such a reference is warranted, either by the fact that the subjects conveyed are described in general terms in the dispositive clause of the deed, or by the fact that, in the narrative of the deed, the parties are represented as having agreed upon certain points which were presumably matter of stipulation in any written agreement which preceded its execution. In the present case, the deed narrates that the appellant and respondent had previously arranged certain terms and conditions, but it makes no mention of any document in which those are to be found. Even if the narrative had borne that these terms and conditions, inter alia had been agreed to by missive letters of the 13th October, 1879, that would not, in my opinion, have made these letters admissible evidence for the purpose of controlling or qualifying the language of the deed. " 20. IN that case, there was again merely a narration of prior transactions. There was nothing in the: dispositive clause by which the terms of any prior agreement were to be imported to control the Deed of Disposition. The next case Mr. Das relied on is (3) Prison Commissioners v. Clerk of the Peace for Middlesex 9 Q. B. D. 506. There, the Justices of the County bought land and houses subject to unexpired leases. The land and the houses were conveyed to the Clerk of the Peace for the County upon trust for the Justices of the County of Middlesex for the purpose of Prison Act and upon no other trust, intent or purposes whatsoever. ' An action having been brought to try whether reversion was in the Prison Commissioners or the Justices, the defendant proposed to adduce as evidence the minutes of the proceedings of the Justices in order to show that the land had been bought for the purpose of rendering the prison more commodious and safe. It was held that the reversion had passed to the Prison Commissioners by virtue of the Prison Act. It was held that the reversion had passed to the Prison Commissioners by virtue of the Prison Act. The conveyance having been executed, the minutes of the proceedings of the Justices were inadmissible in evidence showing the purpose for which the land had been bought. In that case the conveyance did not even recite the minutes of the proceedings. Jessel, M. R. in course of his judgment said : "the law is that whatever the negotiations may be that precede the purchase, still the parties to the conveyance are bound by it; they may have changed their mind but the execution is enough to bind them; the Justices approved of the conveyance and were the real parties to it, and that is the only document to which we can look in order to see what the title of the clerk of the Peace, the nominal defendant, is to the land in question." 21. IN the present case, there is clear indication in the conveyance itself that the parties did not change their mind. The case, therefore, in my opinion, is of no assistance to the defendants. Here the Deed of Assignment itself says that the property is being assigned in pursuance of the Agreement and in consideration of the assignee having agreed to realise its dues in accordance with the terms of the Agreement. The Agreement of December 13, 1930 is, therefore, of necessity, attracted to the transfer. 22. I have emphasised the effect of the use of the words in pursuance of the Agreement in the Deed of Assignment of February 12, 1931. In my opinion, the absence of these words should not have made any difference. Sometimes a transaction is contained in more than one document. It is not even necessary that one of these documents should refer to the other or others so long as the parties intend that the document or documents should be given effect to in the context of and in consonance with the other. It is abundantly clear that by executing the Deed of Assignment the assignors did not intend to forego the Agreement of 1930. The assignment was contemplated in the Deed of December 13, 1930 for the purposes and objects set out therein. The Deed of Assignment, therefore, must be treated as having been executed to implement the terms of the Agreement set out in the Deed of December 13, 1930. The assignment was contemplated in the Deed of December 13, 1930 for the purposes and objects set out therein. The Deed of Assignment, therefore, must be treated as having been executed to implement the terms of the Agreement set out in the Deed of December 13, 1930. In the present case there had to be, of necessity, two deeds. The Deed of December 13, 1930 contemplates a subsequent act of transfer by the mortgagors to the mortgagee in terms of the Agreement but that could not be done unless prior consent of the landlord had been obtained to the agreement and the agreement had been sanctioned by Court. The landlord's consent was necessary because under the Agreement arrears of rent became payable by the lessees' transferees, that is to say, by the defendant bank and not by the lessees who were bound to pay the arrears under the terms of the Cease. The Court had been moved for execution of the final mortgage decree and sanction of the Court was necessary for adjustment of the decree by the Agreement and the Assignment. There is some internal evidence that the parties intended that the two Deeds were to operate in close correspondence to each other. That is why the two Deeds were filed in the Alipore Court together and the decree was adjusted on the basis of the Agreement and the Assignment. It is also not without significance that the Memorandum of Agreement dated December 12, 1930 which is not a compulsory registrable document was registered simultaneously with the Deed of Assignment Under section 5 of the Trust Act, a trust in relation to immovable property declared by a non-testamentary instrument, in order to be valid, has to be registered. No registration was necessary if the Memorandum of Agreement were to operate merely as a contract. It is more likely than not, that it was registered because it was to operate as a document of trust. 23. IT has to be borne in mind that very often a trust is created by two documents. One merely conveys the property. The other creates the obligations. In creating trust for sale of immovable properties this is all the more necessary so that the trustee far sale can pass a clear title. The practice has received statutory recognition in England by the Settled Lands Act. One merely conveys the property. The other creates the obligations. In creating trust for sale of immovable properties this is all the more necessary so that the trustee far sale can pass a clear title. The practice has received statutory recognition in England by the Settled Lands Act. In this connection reference may be made to Under bill's Law of Trusts, 10th Edition, Article 43 paragraphs 1 and 2, pages 240 to 243. At page 241 it is said that "a trust for sale of land, if created inter vivos, it is the practice, but not absolutely essential, that the settlement should be effected by two deeds, one vesting the land in the trustees upon trust to sell, and the other declaring the trusts of the proceeds of the sale, thus keeping the latter off the title. "At page 243 it is said, the great object of the legislation of 1925 was to facilitate sales by keeping trusts off the title, or "behind the curtain", as it has been put. It is, therefore, desirable (although none of the Acts makes it compulsory) that the former custom should be followed, and two deeds used in all settlements inter vivo on trust for sale." In this connection, counsel also relied on Halsbury's Statutes of England, 2nd Edition, Vol. 23 pp. 23-24, item No. 4 and annotations under the head General Notes and Pridcaux's Forms and Precedents, 21st Edition, Vol. 1, pp. 8, 62 and 481. That the two deeds need not be executed simultaneously but may be executed at different times is supported by Norton on Deeds, 2nd Edition pages 86 to 87. 24. AN instance of a trust created by two deeds is provided by the case of (4) Uma Nath v. Jang Bahadur A. I. R. 1938 P. C. 245. A Hindu Taluqdar executed two instruments. One was a deed of relinquishment by which he relinquished all his rights in the properties to his son. The second instrument an Ikrarnama, was executed by the son One. That deed, while providing for maintenance and debts of his father and mother, arranged to pay a certain sum and a village to a son of his father's concubine on his attaining majority, provided he remained obedient. The second instrument an Ikrarnama, was executed by the son One. That deed, while providing for maintenance and debts of his father and mother, arranged to pay a certain sum and a village to a son of his father's concubine on his attaining majority, provided he remained obedient. It was held by the Judicial Committee that the two instruments should be read together and the obligations undertaken by the son were the terms upon which his father had surrendered to him immediately all his properties. In these circumstances, the instrument created a trust in favour of the concubine's son. In my opinion, the argument that the Court cannot look into the deed of December 13, 1930 and by importing its terms, engraft a trust on the ownership of the property, is of no substance. If the intention of the parties was to create a trust by the Deed of Agreement of 13th December, 1930 and by subsequent transfer of the property to the trustee, the Court will treat the two deeds as parts of the same transaction and hold that by the combined operation of the two deeds a trust for sale came into effect. In the view I have taken, I answer issue No. 3 in the affirmative. Having taken the view that the Agreement of December 13, 1930 is attracted to the Assignment of February 12, 1931, I have to consider whether the Agreement creates any obligation which is annexed to the ownership of the property which has passed to the defendant bank by assignment. 25. IT was contended on behalf of the defendants that the Agreement was merely a contract and nothing more. It did not bring any trust into existence. It was a commercial bargain. The bargain was that if the bank in its discretion sold the property the mortgagors were to share equally with the mortgagees in the surplus left of the proceeds of sale. Mr. Das submitted that there is no indication in the deed of Assignment that a trust was intended. He relied on Keeton on the Law of Trusts. 8th Edition p. 7 where it is stated, on the basis of decided cases, that the Courts will not imply a trust unless an intention to create one can be discovered in the surrounding circumstances. The contract, he submitted, ought not to be enlarged into a trust. He relied on Keeton on the Law of Trusts. 8th Edition p. 7 where it is stated, on the basis of decided cases, that the Courts will not imply a trust unless an intention to create one can be discovered in the surrounding circumstances. The contract, he submitted, ought not to be enlarged into a trust. He relied on (5) Ganesh Export and Import Company v. Mahadeolal Natmal a. I. R. 1956 Calcutta 188 where Chakravarti, C. J. drew a distinction between a trust and a contract in the context of deposit of moneys repayable with interest. He also relied on (6) S. Ripudaman v. Surinder Kumar A. I. R. 1959 Punjab 92 for the characteristics which distinguish a trust from a contract. In particular he relied on the observation of A. N. Bhandari, C. J. that it is the manifestation of intention and not the actual intention which determines whether a trust has been created. It may be readily conceded that if the intention to create a trust does not express itself in words or in acts no trust can come into existence. That is so, because in that case, evidence of any intention to create a trust will be lacking. Moreover, such a situation will not be covered by section 6 of the Trusts Act. 26. A trust may arise and often does arise out of a contract. If any authority is needed for so obvious a proposition, reference may be made to (7) Indian iron and steel Company and others v. Dalhousie Holdings Ltd. and ors. A. I. R. 1957 Calcutta 293 where Bachawat, J. observed : "trust in its origin was a form of contract distinctively enforced in equity. A contract creates a trust where it has brought into existence an obligation annexed to the ownership of property for the benefit of a person other than the owner. No technical words are required to create a trust. The question is fundamentally a question of the parties to the contract." Counsel on behalf of the defendants referred to Halsbury's Laws of England, 3rd Edition, Vol. 30 at page 210 Article 370. There it is said : "the distinction between trusts and powers is that, while the Court will compel the execution of a trust, it cannot compel the execution of a power. 30 at page 210 Article 370. There it is said : "the distinction between trusts and powers is that, while the Court will compel the execution of a trust, it cannot compel the execution of a power. But there are powers which in their nature are fiduciary, in the sense that the donee of the power is a trustee of it, and has an interest extensive enough to allow of its exercise. These powers may be called fiduciary powers, or powers in the nature of trusts; powers which are not fiduciary are often called bare powers. The Court does not allow the non-execution of fiduciary powers to defeat the intention of the donor." It was submitted that this is a case of bare power. Under the Agreement a power was conferred on the defendant bank to sell or not to sell the property entirely at the discretion of the donee of the power. If the donee has not exercised the power, the Court cannot interfere, far less can it make an order for administration of the estate. In the alternative, Mr. Subimal C. Roy appearing on behalf of the defendant No. 2 argued that, at the most, it is a case of power in the nature of trust. Relying on a passage in Farwell on Powers, third edition at page 524, he submitted that if the donee of the power has not acted malafide or capriciously the Court ought not to interfere. There is no evidence of malafides or caprice. The donee of the power, in the exercise of its discretion, has decided to sell the property to the defendant No. 2 for a consideration which the donee thinks is adequate in the circumstances, and there is no reason why the Court should interfere with the exercise of the donee's discretion." The question arises whether in the present case the liberty conferred on the bank under the Agreement to sell the property at its discretion is a bare power to be exercised or not to be exercised at the bank's discretion or whether an obligation has been cast on the bank to sell the property as a trustee for sale. Section 6 of the Trusts Act provides that subject to the provision of section 5 a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary and (d) the trust property, and transfers the trust property to the trustee. Is there, in the present case, an intention on the part of the transferors of the property to create a trust ? If so, how has the intention been indicated ? and if so, what is the purpose of the trust ? 27. COUNSEL on behalf of the plaintiffs contended that even if it be held that the intention to create a trust has not been sufficiently indicated in the deed of Assignment by which the property was transferred to the defendant bank, the intention has been clearly expressed in the Agreement of December 13, 1930. The intention can also be gathered from the surrounding circumstances. Counsel relied on (8) Rochefoucauld v. Boustead (1897) 1 Ch. 196. The plaintiff was the owner of an estate subject to a mortgage. The mortgagee wished to call in the mortgage. The plaintiff not being able to find the money entered into an arrangement with the defendant, who was anxious to help her, to take a transfer of the mortgage. It was proposed that the mortgagee should sell the estate by auction and the defendant should enter into an agreement with the mortgagee to purchase the estate, if no higher bidder intervened, at a price sufficient to cover the mortgage debt. An agreement to this effect was signed. The estates were sold to the defendant and were conveyed to him as the absolute owner. After the sale, the defendant remitted to the plaintiff from time to time certain sums of money out of the profits. 28. THE case of the plaintiff was that the purchase was made on her behalf and that the defendant was a trustee for her, subject to a charge in his favour in respect of the monies advanced by him to obtain the estate and of monies spent by him for running the estate. The defendant repudiated the claim of the plaintiff. THE case of the plaintiff was that the purchase was made on her behalf and that the defendant was a trustee for her, subject to a charge in his favour in respect of the monies advanced by him to obtain the estate and of monies spent by him for running the estate. The defendant repudiated the claim of the plaintiff. The plaintiff brought an action for a declaration that the defendant had bought the property as a trustee for her, for an account of his dealings with the property and payment of what might be found due from him. The evidence as to the circumstances under which the estate was conveyed to the defendant consisted of correspondence both before and after the sale and of oral evidence. The action was dismissed by the trial court. The plaintiff appealed. 29. HAVING come to the conclusion that the plaintiff had proved that the estate in question was conveyed to the: defendant, upon trust for her, in course of his judgment, Lindley, L. J. said : "this conclusion renders it necessary to consider whether the Statute of Frauds affords a defence to the plaintiff's claim. The section relied upon is section 7 which has been judicially interpreted. According to those authorities it is necessary to prove by some writing or writing signed by the defendant, not only that the conveyance was subject to some trust but also what that trust was. But it is not necessary that the trust should have been declared by such a writing in the first instance; it is sufficient if the trust can be proved by some writing signed by the defendant and the date of the writing is immaterial. It is further established by a series of cases the propriety of which cannot now be questioned, that the statute of frauds does not prevent the proof of fraud; and that it is fraud on the part of the person to whom the land is conveyed as trustee and who knows it was so conveyed, to deny the trust and claim the land himself. Consequently, notwithstanding the statute, it is competent for a person claiming land conveyed to another to prove by oral evidence that it is so conveyed upon trust for the claimant, and that the grantee knowing the facts is denying the trust and relying upon the form of conveyance and the statute, in order to keep the land himself." 30. IN Rochefoucauld's case the intention to create a trust was gathered from the correspondence and surrounding circumstances of which oral evidence was given. The property was transferred to the trustee by a deed of sale in which there was no reference to trust. Moreover, the court took into consideration the conduct of the parties in deciding whether a trust was intended or not. In this connection counsel relied on some Supreme Court decisions. In (9) Abinash Chandra Banerjee v. Uttarpara Hitakari Sabha 1962 (2) S. C. R. 28 at 33 the Court found that although the testator had not used the word 'trust' or 'charge' in the will, his intention to create a trust could be gathered from the circumstances existing at the time of the will and the recitals found therein. In (10) Bhaskar v. Shrinarayan A. I. R. 1960 S. C. 301 where the question arose whether a transaction which was ostensibly one of sale should be regarded as a mortgage Shah, J. observed : "the question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts;. . . . . Evidence of contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible." 31. COUNSEL submitted that in construing the relevant documents the Court ought to take into consideration the surrounding circumstances, the conduct of the parties and the purpose of the transaction. . . . . Evidence of contemporaneous conduct is always admissible as a surrounding circumstance, but evidence as to subsequent conduct of the parties is inadmissible." 31. COUNSEL submitted that in construing the relevant documents the Court ought to take into consideration the surrounding circumstances, the conduct of the parties and the purpose of the transaction. He relied on (11) Dalip Singh v. Chaudhurain Nawal Kunwar 35 I. A. 104 where the Judicial Committee held that if on the question whether a transaction is a genuine or benami, the evidence on neither side is wholly convincing and when the evidence given and withheld is open to adverse criticism, a Court must largely rely on the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct. Counsel also relied on a judgment of Mookerjee, J. in (12)Promode Kumar Roy v. Kali Mohan Saha 27 C. W. N. 305 where similar views were expressed. In (13) Harihar Prasad v. Keso Prasad A. I. R. 1925 Patna 65, the Court observed "it is not necessary that an express declaration should be proved. In England, inferences drawn from the conduct of the parties have been held sufficient to establish an express trust and I think the same principle should apply to trusts for a specific purpose within the meaning of section 10 of the Limitation Act. " In (14) Jones v. Badley 1868 (3) Ch. Appeals 362 Lord Cairns, L. C. observed that the Court 'engrafts trusts on the device by admitting evidence which the statute in terms exclude in order to prevent a devisee from applying property to a purpose foreign to that for which he undertook to hold it. " 32. MR. Subimal Roy submitted that on a fair and proper construction of the Agreement of 1930 the Court ought to hold that no trust came into existence. He pointed out that clause 1 of the Agreement contemplates transfer by the mortgagors of their right, title and interest in the properties to the mortgagees to effectually vest the properties in the mortgagees as full and absolute owners thereof. This provision, he argued, militates against a limited ownership or ownership subject to obligations. He pointed out that clause 1 of the Agreement contemplates transfer by the mortgagors of their right, title and interest in the properties to the mortgagees to effectually vest the properties in the mortgagees as full and absolute owners thereof. This provision, he argued, militates against a limited ownership or ownership subject to obligations. Moreover, the Deed of Assignment provides that "the assignees will hereinafter enjoy the said lands here ditaments and premises hereby assigned respectively and deal with the same in any way they think fit and receive rents, issues and profits thereof." Moreover, no obligation has been cast on the mortgagors to sell the estate but only a power or a liberty has been conferred on the mortgagees to sell the property at their sole discretion. They have also been given liberty at their discretion to decide an the manner in which the property is to be sold. Liberty has also been given to the assignee to maintain, develop and let out the property for the purpose of sale These are liberties, Mr. Roy argued, which the assignee may or may not exercise. No obligation has been imposed on the assignee to do any of these things. Moreover, clause 2 of the Agreement provides that the mortgagees will not be liable to render any account or explanation to the mortgagors in regard to the debits made in the account and the mortgagors will not be entitled to ask for any account or to question or dispute in any way the correctness thereof. These provisions run counter to section 19 of the Trusts Act under which a trustee is bound at all reasonable times at the request of the beneficiary to furnish him with full and accurate information as to the amount and state of the trust property. The defendant bank, he argued, is not a trustee because it is the full and absolute owner of the property and is under no obligation to render accounts. It is not a trustee for sale because it is under no obligation to sell. The terms of the Agreement he submitted, militate against the concept of a trust. 33. THE contentions raised by Mr. Roy require careful consideration. In my opinion, transfer of the property so as to vest it fully and absolutely in the defendant bank does not militate against creation of a trust. The terms of the Agreement he submitted, militate against the concept of a trust. 33. THE contentions raised by Mr. Roy require careful consideration. In my opinion, transfer of the property so as to vest it fully and absolutely in the defendant bank does not militate against creation of a trust. A property which is the subject of a trust for sale has to be transferred fully and absolutely to the trustee so that the trustee can confer a clear title on his purchaser. Moreover, under section 3 of the Trusts Act a trustee has to be the owner of the property before obligations can attach to his ownership. In (15) Warriner v. Rogers L. R. 16 Eq. 340, 348 Vice Chancellor Bacon said : "the one thing necessary to give validity to a declaration of trust-the indispensable thing-I take to be, that the donor, or grantor, or whatever he may be called, should have absolutely parted with that interest which has been his up to the time of the declaration, should have effectually changed his right in that respect and put the property out of his power, at least in the way of interest." 34. IT is true that liberty to sell the property has been given to the defendant bank by the Agreement of 1030. This provision has, however, to be read in the context of other clauses of the Memorandum of Agreement so as to give effect to those provisions. No clause or provision ought to be construed in isolation to nullify the roam object and purpose of the Agreement. The question is what does 'liberty' mean in the present context ? In (16) Emma Minor v. James Patron and others L. R. 1 A. C. 428 a will provided that the trustees were to sell, at their sole discretion, certain real and personal properties including the proprietorship of a newspaper and further that if they did decide to sell the newspaper business and if my of his sons decided to carry on the same, such one should be entitled to purchase it at 500 less than the market price. It was also provided that until all the property was sold the trustees were to apply the income of the part unsold in a particular manner. It was also provided that until all the property was sold the trustees were to apply the income of the part unsold in a particular manner. It was held that the will created not a mere power but a trust to sell with a discretion in the trustees as to the manner and time of sale. 35. IN construing the will the Court took into consideration the real intention of the testator and in giving effect to the intention the document was construed as a whole in the context of surrounding circumstances. The consequences of accepting the literal interpretation were also considered. The Court found that on a proper construction of the will, no effect was to be given to a parenthesis. 36. IN (17) Glynn v. Margetson and Co. and. others (H. L.) 1893 A. C. 351 some oranges were shipped on board under a Bill of Lading which stated that the ship was lying at the port of Malaga and bound for Liverpool, "with liberty to proceed to and stay in any port or ports in the Mediterranean, Levant, Black Sea, or Adriatic, etc. etc. for the purpose of delivering coals, cargo or passengers". The shipper expressly agreed to all those stipulations in the Bill of Lading. The boat left Malaga for a port on the Mediterranean which was out of her course for Liverpool, then returned and made for Liverpool where the oranges were delivered in a damaged condition owing to the delay. In an action for damages, the owners of the ship relied on the 'liberty' clause. The plaintiff succeeded at the trial. In dismissing the appeal preferred by the defendant Lord Herschell, L. C, said : "there is no difficulty in construing the clause to apply to a liberty in the performance of the stipulated voyage to call at a particular port or ports in the course of the voyage. . . . . . but it must, in ray view, be a liberty only to proceed and stay at the ports which are in the course of the voyage." Lord Halsbury, L. C. went further. . . . . . but it must, in ray view, be a liberty only to proceed and stay at the ports which are in the course of the voyage." Lord Halsbury, L. C. went further. He said: "looking at the whole of the instrument, and seeing what one must regard, for a reason which I will give in a moment, as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. The main purpose of the contract was to take on board at one port and to deliver at another, perishable goods." It may be legitimately asked if tine parties intended merely to transfer 11he properties fully and absolutely to the defendant bank without anything more, so as to enable the defendant bank to exercise dominion over the properties unhampered by any obligation, why was it necessary to provide for the exercise of liberties in regard to the use and transfer of the properties V The owner of a property to which he is legally and beneficially entitled, does not require any liberty to maintain, develop or let it out or to transfer it by sale or otherwise. In my opinion, the Deed of Assignment should be construed in the light of the main object and purpose of the assignment, and the provisions of the Deed of Agreement in pursuance of which the properties were assigned to the defendant bank to give effect to the intention of the parties, 37. THE argument that the provision under which the bank was exempted from rendering any account or furnishing any explanation supports the view that no trust was intended, is of some force. At the same time if on a total view of the deeds in question it appears that a trust was intended, any provision in the Agreement which is contrary to the provisions of the Trusts Act or the law of trusts in general, must be held to be void and struck down. In this connection I may refer to (18) Surendra Nath v. Jahnavi A. I. R. 1929 Cal. 484 at page 490, where it was held, in the facts of that case, that a provision exempting a person from liability to render accounts is of no consequence. 38. In this connection I may refer to (18) Surendra Nath v. Jahnavi A. I. R. 1929 Cal. 484 at page 490, where it was held, in the facts of that case, that a provision exempting a person from liability to render accounts is of no consequence. 38. THE objects of the Agreement as also of the Assignment have been expressly stated to be to pay off all arrears of rent due to the superior landlords and to liquidate the debts of the mortgagors payable on the mortgage decree. To carry out these objects liberty is given to the assignees to sell the property at their sole discretion. The liberty is ample. But if it has to be exercised only in a particular manner to achieve the purpose and object of the Agreement and the Assignment, namely, liquidation of debts, the liberty has to be exercised in that manner and that manner alone. Liberty has been conferred on the bank to develop, maintain or let out the property but the liberty has again to be exercised as is made clear, for the purpose of sale. The bank has maintained and developed the estate in some measure. It has also let out the property. It must be deemed to have done so for the purpose of sale and for no other purpose because that is precisely what it has agreed to do. The opening words of clauses 2 and 3 of the Memorandum of Agreement are "pending transfer of the property by sale or otherwise." Under clause 2 pending the transfer of the property by sale or otherwise, the bank is under an obligation to open and maintain an account in the name of the mortgagors and the same is to remain open until sale of the property by the bank in accordance with the Agreement. It also provides that until sale all costs, charges and expenses in regard to the property, namely, municipal taxes, putting the title to the property in order, ejecting tenants, development of the property and those of and incidental to the sub-division of the property are to be debited to the mortgagors. It also provides that until sale all costs, charges and expenses in regard to the property, namely, municipal taxes, putting the title to the property in order, ejecting tenants, development of the property and those of and incidental to the sub-division of the property are to be debited to the mortgagors. If it is held that the bank is under no obligation to sell the property and the bank chooses not to sell the property the account will remain open for ever with credit and debit entries running in perpetuity and the mortgagors will continue to be debited with those costs, charges and expenses ad infiuitum. That, in my opinion, is a situation not easy to visualise. 39. CLAUSE 3 provides that pending transfer of the property by sale or otherwise the mortgagees will render all reasonable facilities to mortgagors in connection with management or disposal of or dealing with said property and are to be debited with all out of pocket expenses in connection with the same. It cannot be that the mortgagees will continue to render those facilities an wil1 be debited with those out of pocket expenses for all time to come, as will be the case if the defendant bank derides not to sell and does not sell the property. 40. CLAUSE 4 provides that after transfer of the property fully by sale or sub-lease the mortgagees will cause an account of their claim including costs charges and expenses to be made up and adjusted and if after payment all their dues and outgoings out of the proceeds of the said property any balance is left the same will be divided between the mortgagors and the mortgagees or their nominees in equal shares. If it is held that the bank has a discretion not to sell the property and the bank does not sell, the bank's dues and outgoings will never be paid, the account will never be adjusted and Clause 4 will become wholly nugatory. Clause 5 provides that as to the current rent the mortgagees shall pay Rs. 10,000/- every year until the said property is fully disposed of by sale or sublease, the balance of rent being payable in December, 1934 without any interest. Taken literally, the clause means that current rents for the period up to 1934 will be paid at the rate of Rs. 10,000/- every year until the said property is fully disposed of by sale or sublease, the balance of rent being payable in December, 1934 without any interest. Taken literally, the clause means that current rents for the period up to 1934 will be paid at the rate of Rs. 10,000/- every year and the balance of Rs. 8,000/- of the yearly rent will be paid, in any event, by December, 1934. But as regards current rents for the period after 1934 the provision taken literally, will mean that the mortgagees shall pay at the rate of Rs. 10,000/-only every year until the property is fully disposed of by sale or sub-lease. If the property is never sold how is the balance of rent in respect of the period after 1934 to be paid ? The deed does not make any provision for such a contingency. It is therefore, possible to argue that Cause 5, taken by itself, contemplated that the property would be sold by the end of December, 1934. In any event, the clause certainly contemplates sale of the property at some point of time or other. 41. THE Deed of Assignment recites that it has been executed in consideration of the assignees having agreed to realise their dues under the mortgage from the mortgaged property alone in accordance with the terms hereinbefore mentioned', that is to say, the terms mentioned in the deed of December, 13, 1930. It is, therefore, contemplated that the defendant bank will realise its dues by transfer of the mortgaged property by sale or by sub-lease. 42. IN my opinion, the Agreement does not contemplate liquidation of the decretal debt and payment of arrears of rent out of the rents, issues and profits of the property alone. There is an express provision in the Agreement that only after transfer of the property the mortgagee's dues and outgoings will be paid out of the proceeds of the property. Moreover, if it were so, then what was to be the ultimate destination of the properties after the debt had been met out of the rents, issues and profits ? The properties have no doubt vested in the bank but it was not the intention of the parties that the bank would realise its decretal dues out of the income of the properties and after realisation of its dues appropriate the properties. The properties have no doubt vested in the bank but it was not the intention of the parties that the bank would realise its decretal dues out of the income of the properties and after realisation of its dues appropriate the properties. The right given to the bank is only to realise its dues out of the proceeds of the property not to realise its dues and also to appropriate the properties. Neither the Agreement nor the Deed of Assignment makes any provision for re-conveyance of the property to the mortgagors after the bank's dues have been met. It is, therefore, clear that the debts under the decree are not to be liquidated out of the rents, issues and profits alone. Certain general arguments are also available against the construction that the defendant bank, in the exercise of its discretion, might not sell the properties at all. If the properties are not sold how would the debt be liquidated, which is the main object of the Agreement and of the Assignment V Wild interest on the decree go on accruing for ever ? 43. IT was submitted on behalf of the plaintiffs that assuming the bank has a discretion to sell or not to sell, the bank has exercised its discretion in favour of sale by having developed the property and debited the mortgagors with the expenses of development which could have been done under the Agreement, only for the purpose of sale. 44. IN my opinion, the paramount object of the Agreement and the Assignment, as well as the provisions of the Agreement support the construction that it became incumbent on the bank to sell the property. By virtue of the deeds of 1930 and 1931 the defendant bank came under the obligation to open and maintain an account in a particular manner, to pay arrears of rent, to sell the property, liquidate the decretal claim and divide the surplus left of the proceeds of sale, if any, between the mortgagors and the mortgagees in equal shares. These obligations fastened themselves on the defendant bank's ownership of the property, the moment the Deed of Assignment was executed and possession of the properties was made over to the defendant bank. The Deed of Agreement and the Deed of Assignment supplement each other. The latter was executed to implement the former. Together they constitute one indivisible transaction. Mr. These obligations fastened themselves on the defendant bank's ownership of the property, the moment the Deed of Assignment was executed and possession of the properties was made over to the defendant bank. The Deed of Agreement and the Deed of Assignment supplement each other. The latter was executed to implement the former. Together they constitute one indivisible transaction. Mr. Das relied on section 3 of the Trusts Act which defines a trust to mean an obligation annexed to ownership of property and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner He argued that no trust could have been created by the deed of December 13, 1930 because on that date the properties had not vested in the defendant bank. The deed merely contains an agreement to transfer the properties. Vesting took place only by the subsequent deed of February 12, 1931. 45. IT is not the plaintiffs' case that trust came into existence on December 13, 1930 or that it came into existence by the Agreement alone. Paragraph 7 of the plaint narrates the Agreement of December 13, 1930 and recites its terms. Paragraph 8 says that the mortgagors leasehold rights in the property were assigned in favour of the defendant bank in pursuance of the agreement. Paragraph 9 says that possession of the property was made over to the assignees. In paragraph 10 it is pleaded that "in title premises aforesaid, the defendant bank became the trustee for sale of the Bhukailash property under the terms and for the objects set out in the deed dated the 13th December, 1930. " 46. CLAUSE 1 of the Memorandum of Agreement makes it clear that the stipulations and engagements, other than the one for transfer of the properties in the said deed were to take effect only after the properties had been transferred. The terms of the Agreement, therefore, became operative after the properties vested in the defendant bank, or in other words, the bank became a trustee for sale only after the property had been assigned by the deed of Assignment of February 12, 1931 and possession had been made over to the bank. Mr. The terms of the Agreement, therefore, became operative after the properties vested in the defendant bank, or in other words, the bank became a trustee for sale only after the property had been assigned by the deed of Assignment of February 12, 1931 and possession had been made over to the bank. Mr. Das then contended that there is no evidence of any confidence reposed by the Rajgarhias in the defendant bank in the sense of section 3 of the Trusts Act. The large discretions conferred on the bank as regards sale of the properties and the mode of sale, the stipulation entitling the bank to debit the Rajgarhias with costs, charges and expenses including costs of development which the Rajgarhias were to accept without any objection, the provision exempting the bank from any liability to render accounts or furnish any explanation with regard to the debits made, and finally, the provision that after sale the account made up by the bank should be conclusive and final, speak of a confidence one does not expect in commercial bargains. The confidence which inspired these stipulations is to be expected only in the case of a trust. 47. IN these circumstances I have no hesitation in holding that the bank is a trustee for sale in respect of the Bhukailash properties and I answer issue No. 2 in the affirmative. 48. A question of jurisdiction has been raised by the defendants. It is contended that in its essence the suit is a suit for land situate outside the local limits of the original jurisdiction of the Court and the Court is, therefore, incompetent to entertain the suit. To decide the question of jurisdiction the plaint has to be regarded as a whole. No doubt, the reliefs which the plaintiffs claim have also to be examined for determination of the question but that by itself does not conclude the matter. In (19) Moolji Jaitha and Co. v. Khandesh Spinning and Weaving Mills Co. A. I. R. 1950 F. C. 83 Kania, C. J. remarked : "the nature of the suit and its purpose have to be determined by reading the plaint as a whole. It is not proper to dissect the prayer and consider whether the Court has jurisdiction on the limited point." 49. I have given a synopsis of the plaint elsewhere. A. I. R. 1950 F. C. 83 Kania, C. J. remarked : "the nature of the suit and its purpose have to be determined by reading the plaint as a whole. It is not proper to dissect the prayer and consider whether the Court has jurisdiction on the limited point." 49. I have given a synopsis of the plaint elsewhere. It has to be examined whether on the basis of the averments and submissions made in the plaint and the reliefs claimed in the suit, the suit in substance is a suit for land. 50. COUNSEL on behalf of the defendants submitted that in asking the Court to hold that the bank is a trustee in respect of the property, the plaintiffs, though not disputing the transfer of the property or the title of the defendant bank to the property, is asking for a decision on the character of the bank's title. Counsel argued that by doing so, the plaintiffs are inviting the Court to adjudicate on a question of title to land. The character of the title, it was submitted, cannot be dissociated from title the argument, I suppose, is that in contending that the defendant bank is trustee for sale of the land the plaintiffs are claiming to be the beneficial owners of the land and therefore, seeking to establish their title. The terms "legal owner" and "beneficial owner" are often used. That is only an instance of use of loose terminology in legal parlance as was pointed out by Patanjali Sastri, J. in the (19) Moolji Jaitha case. In (20) Rani Chhatra Kumari Devi v. Mohan Bikram Shah 58 LA. 279, Sir George Lowndes, in delivering the judgment of the Privy Council, observed : "the Indian Law does not recognize legal and equitable estates; Tagore v. Tagore LA. Supp. 47, 71, Webb v. Macpherson (1916) A. C. 266. By that law, therefore, there can be but one 'owner' and where the property is vested in a trustee the 'owner' must, their Lordships think, be the trustee. This is the view embodied in the Indian Trusts Act, 1882, see ss. 3, 35, 56 etc." In that view of the matter it is hardly open to the defendants to contend that the plaintiffs by contending that the defendant bank is a trustee for sale of the land are seeking to establish or deny any title. 51. This is the view embodied in the Indian Trusts Act, 1882, see ss. 3, 35, 56 etc." In that view of the matter it is hardly open to the defendants to contend that the plaintiffs by contending that the defendant bank is a trustee for sale of the land are seeking to establish or deny any title. 51. COUNSEL for the defendants relied on the case of (21) Delhi and London Bank v. Wordie 1 I. L. R. Cal. 249. There, M and L were joint owners of certain lands. During the absence of L, M executed on behalf of himself and I. a deed of assignment of the entire property in favour of trustees on trust to sell the land for the benefit of their creditors, A representative suit was filed by the creditor for removal of the trustees and for carrying the trust into effect. In this suit M and L were made parties. L denied that M had any power to execute the deed on his behalf. It was held that the suit having for its object to compel a sale of the whole of the land including L's share, title to which was disputed, was a suit for land within the meaning of clause 12. Garth, C. J. remarked that "one of the main points which the plaintiff sought to establish is the title of the trustees to L' s share." 52. IN my opinion, this case is of no assistance to the plaintiffs. There, the creation of trust was not in dispute. What was in dispute was whether the title to a part of the land had vested in the trustee. In the present case, there is no dispute as to the title of the bank to the land. What is in dispute is whether a trust was created in respect of the land or not. Counsel then relied on the decision in (22) Sewdayal Ramjeedas v. Official Trustee 1931 A. I. R. Cal. 651. In the present case, there is no dispute as to the title of the bank to the land. What is in dispute is whether a trust was created in respect of the land or not. Counsel then relied on the decision in (22) Sewdayal Ramjeedas v. Official Trustee 1931 A. I. R. Cal. 651. There it was held that where the plaintiffs want to have it established that on the death of a life tenant the immovable property reverts to the estate of the settlor and becomes available to satisfy the claims of the creditor, such suit is a suit for land because suits for land mean suits in which having regard to the issues raised in the pleadings, the decree or order will affect proprietary or possessory title to land. 53. WHETHER a property has reverted to the estate of the settlor is mainly, if not entirely, a question of title. No one disputes the proprietary or possessory title of the bank to the property. To say that T is a trustee is not only not to deny that T has title to the property but on the contrary to aver that he has title. One cannot be a trustee unless one has a title to the trust property. The plaintiffs, in contending, that the bank is a trustee is in fact accepting the position that the bank has title to the property. AM that they are claiming is that an obligation is annexed to the title of the property. The bank is denying the obligation. It is not the owner's title but the obligation annexed to ownership which is in dispute. 54. THE cases of (23) Galstaun v. Diana Sarkies A. I. R. 1929 Cal. 227 and (24) Satyabrata Sen v. Gopaldas Aurora A. I. R. 1929 Cal. 373 were cited. The bank is denying the obligation. It is not the owner's title but the obligation annexed to ownership which is in dispute. 54. THE cases of (23) Galstaun v. Diana Sarkies A. I. R. 1929 Cal. 227 and (24) Satyabrata Sen v. Gopaldas Aurora A. I. R. 1929 Cal. 373 were cited. In the former case Lort Williams, J. held that "a suit for declaring a person as secured creditor of land is a suit for land." In the latter case, a Division Bench held that "the practice of Calcutta High Court for more than half a century has been to regard suits for the enforcement of equitable mortgage of property situate outside the jurisdiction as suits for lend." Now that the plaintiffs by an amendment of the plaint are no more contending that the defendant is a mortgagee in possession, these cases do not appear to have any relevance. Reference was made to (25) Ebrahim v. Taylor I. L. R. 36 Cal. 59. There, the plaintiff was a lessee under the defendant in respect of premises situate outside the jurisdiction of this Court. The lease contained previsions for re-entry by the lessor on the premises being vacated by the lessees. Under the relevant covenant, in the event of re-entry the lessor was entitled to re-let the premises, the lessee remaining liable on his covenants and in particular for any deficiency of rent on re-letting by the landlord. The premises were vacated by the lessee. The lessor entered on and re-lot the premises. 55. THE lessee brought an action for a declaration that the lease was subsisting and the defendant was a trustee for his benefit of the profits he had received in respect of the premises. Stephen, J. held that "the suit was a suit for land because the plaintiff was seeking a declaration that the lease was subsisting and that he was entitled to the rents. issues and profits of the premises as the lessee thereof. " The ratio of the decision was that the plaintiff by claiming that the lease was subsisting, was claiming an interest in land and by claiming rents, issues and profits, was virtually asking for possession of land. The case is, therefore, not of any assistance to the plaintiff. Here, the plaintiffs are not asking for possession nor are they disputing the right, title and interest of the defendant bank in the property. The case is, therefore, not of any assistance to the plaintiff. Here, the plaintiffs are not asking for possession nor are they disputing the right, title and interest of the defendant bank in the property. They are only contending that an obligation has been imposed on the defendant bank by the deed of 1930, an obligation which is annexed to the defendant's title. 56. COUNSEL relied on the case of (26) Sudamdih Coal Company Ltd. v. Empire Coal Company Ltd. I. L. R. 42 Cal. 942. In that case, the boundary between the plaintiffs and the defendant's collieries was in dispute. The question was whether the defendant had encroached on the plaintiff's land and had removed coal of which the plaintiff was the owner. The defendant contended that as the suit had been brought for the purpose of getting control of and establishing title to land, it was a suit for land. Jenkins, C. J. held that, the expression suit for land in clause 12 of Letters Patent cannot be construed as being limited to suits for the recovery of land in its strict sense but must be construed as extending to a suit for compensation for wrong to land, where the substantial question is the right to land. In that case the learned Chief Justice commented on the meaning of the expression suit for land or other immovable property in these terms : "it appears to me that it was not a mere formal test that was proposed a test to be determined by the precise form in which a suit might be framed; but that regard was to be had to the substance of the matter." I am in respectful agreement with the above observation. In fact, later decisions have fully confirmed these views. In deciding whether a suit is a suit for land, the Court ought to examine on the basis of the case as pleaded in the plaint, what in substance the suit is for. It is the pith and substance of the matter which ought to determine the question. 57. COUNSEL relied on the decision in (27) K. C. Pal Chaudhury v. K. M. Roy I. L. R. 19 Calcutta 361. It was a suit instituted by a mortgagor, inter alia, for a declaration that a mortgage deed was void and for reconveyance of the mortgaged premises situate outside the jurisdiction of the Court. 57. COUNSEL relied on the decision in (27) K. C. Pal Chaudhury v. K. M. Roy I. L. R. 19 Calcutta 361. It was a suit instituted by a mortgagor, inter alia, for a declaration that a mortgage deed was void and for reconveyance of the mortgaged premises situate outside the jurisdiction of the Court. Trevelyan J. held that in so far as the suit as brought for the purpose of declaring an interest in land, it was a suit for land. The case, in my opinion, has little relevance. There, the plaintiff challenged the mortgagee's title to the property and sought to establish his own. 58. IN (28) Provas Chandra Singh v. Asutosh Mukherjee A. I. R. 1930 Calcutta 258 the plaintiff in an originating summons claimed that he was entitled to the whole of the residuary state of the testator to the exclusion of other grandsons and that the purported dedication of the properties made debuttar under the will was void. He further sought reliefs in respect of his claims under Chapter XIII Rule 1a of the Original Side Rules. Page J. found that title to the residuary estate was the substantial objects for which the originating summons was taken out and the construction of the will was sought merely in furtherance thereof. In that view of the matter he held that it was a suit for land. The correctness of the decision was doubted by Ameer Ali J. in (29) Vedabala Debee v. The Official Trustee I. L. R. 62 Cal. 1062. Be that as it may, the proposition of law expressed in the judgment, namely, that a suit for land in clause 12 means a suit in which having regard to the issues raised in the pleadings, the decree or order will affect directly the proprietary or possessory title to land or other immovable property, has not been disputed. Learned counsel for the bank relied on (30) Premsukh v. Mangal Chand 41 C. W. N. 854, (31) Haralal Banerjee v. Nistarini Debee 29 Cal. 315, (32) Padampat Singhania v. Narayandas Jhunjhunwalla 59 Cal. 357 and (33) Maharaja Probirendra Mohan Tagore v. State of Bihar A. I. R. 1959 Cal. 767. The first of these cases was a suit for enforcement of a mortgage of immovable properties. No one disputed, as it could not be, that it was a suit for land. 315, (32) Padampat Singhania v. Narayandas Jhunjhunwalla 59 Cal. 357 and (33) Maharaja Probirendra Mohan Tagore v. State of Bihar A. I. R. 1959 Cal. 767. The first of these cases was a suit for enforcement of a mortgage of immovable properties. No one disputed, as it could not be, that it was a suit for land. What was in dispute was whether by reason of inclusion of a property situate within jurisdiction which was only of notional value in the mortgage security, the Court had jurisdiction to try the suit. In the second case, the plaintiff brought a suit for a declaration that he was entitled to possession of properties movable and immovable for the construction of his grandfather's will under which he claimed, for an account by the executrix of the will for administration of the testator's estate and for other reliefs. The court found that the primary object of the suit was to obtain declaration of title to land and possession thereof. The suit was therefore held to be a suit for land. The case of (32) Padampat Singhania v. Narayandas Jhunjhunwalla was not concerned at all with the question of what is a suit for land and in my opinion, is wholly irrelevant for the purpose of this case. 59. IN (33) Maharaja Probirendra Mohan Tagore v. State of Bihar the principal prayer was for a declaration that the plaintiff's right, title to and interest in certain lands specified in a notification issued under the Bihar Land Reforms Act 1950 had not been affected by the notification, and for other reliefs. The substance of the plaintiffs contention was that the lands had not vested in the State. The suit was therefore held to be primarily for adjudication of title and a Special Bench of this Court pronounced against jurisdiction on the ground that the lands were situate wholly outside the jurisdiction of this Court. These cases, in my opinion, are of no assistance to the defendants. 60. COUNSEL for the plaintiffs relied on the case of (34) Nandalal Bose v. Nistarini, Dassi I. L. R. 30 Cal. 369. These cases, in my opinion, are of no assistance to the defendants. 60. COUNSEL for the plaintiffs relied on the case of (34) Nandalal Bose v. Nistarini, Dassi I. L. R. 30 Cal. 369. The plaintiff brought a suit against the executors of her husband's will for a declaration that a deed of trust, an award, a decree on the award and certain 'leases granted by the executors to themselves of properties situate outside the original civil jurisdiction of the High Court were fraudulent and void against her. She also asked for construction of her husband's will, for account on the basis of willful default, for administration of the estate and consequential reliefs. It was contended by the defendants that having regard to the fact that the defendant had asked for a declaration that the leases were void, the suit was a suit for land and the Court had no jurisdiction to entertain the suit. The trial Court found that the suit was not one for land. In dismissing the appeal Mclean C. J. observed : "this is not a suit for land. It is a suit for administration and as incidental to that suit, for a declaration that certain leases which the executors of the estate granted to themselves cannot stand as against the plaintiff, the beneficiary. " An appeal was preferred to the Judicial Committee. Lord Davey, said : "the primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and actual administration going on there, the High Court of Calcutta in its ordinary jurisdiction had right to order administration of this estate and as ancillary to such an order, to set aside deeds obtained by fraud of the executor. Nor does the circumstance that a decree had been granted by the Court of 24-Parganas making a fraudulent award, an order of the Court, protect that decree from the jurisdiction of the Calcutta High Court when redressing that fraud. In like manner, their Lordships consider the Calcutta Court entitled, for the due administration of the estate to set aside leases of land outside the territorial limits of their jurisdiction, those leases having been made as an incident of the same fraud." (35) Benode Behari Bose v. Nistarini Dassi 32 I. A. 193. In like manner, their Lordships consider the Calcutta Court entitled, for the due administration of the estate to set aside leases of land outside the territorial limits of their jurisdiction, those leases having been made as an incident of the same fraud." (35) Benode Behari Bose v. Nistarini Dassi 32 I. A. 193. I may now refer to the case of (36) Goculdas v. Chaganlal I. L. R. 54 Cal. 655. There it was held that the expression 'suit for land' in Clause 12 of Letters Patent means a suit in which having regard to the issues raised in the pleadings, the decree or order will affect directly, the proprietary or possessory title to land. 61. THE suit was brought to recover part of proceeds of sale of an ancestral house situate outside jurisdiction of which the plaintiff and the defendants were the joint owners and which the defendant No. 1 had sold on behalf of the plaintiff and the defendants. The first and third defendants denied the right, title and interest of the plaintiff in the premises and contended that even if the plaintiff had any interest, it had been lost by adverse possession. In course of his judgment, Page J. observed : "the claim is to a share of the proceeds resulting from the sale of the ancestral dwelling house at Bhawalpore and having regard to the pleadings, no issue arises that can effect the title to the land and premises that have been sold. The title of the purchaser is not challenged. In this suit, the plaintiffs do not seek to set aside the sale on the contrary, both the plaintiffs and defendants approbated the sale, and claimed their share of the proceeds. The real issue to be determined in this dispute is not with respect to the title to the ancestral dwelling house but whether the plaintiffs, at all material times were members of the joint undivided family to which the premises in suit belonged. For these reasons, in my opinion, the suit is not a suit for land or other immovable property within clause 12 of the Letters Patent. " It will be observed that some of the defendants denied the plaintiffs' title to the premises. For these reasons, in my opinion, the suit is not a suit for land or other immovable property within clause 12 of the Letters Patent. " It will be observed that some of the defendants denied the plaintiffs' title to the premises. Nevertheless as the decree which the plaintiff claimed did not directly affect the proprietary or possessory title to the premises, the suit was held not to be a suit for land. At page 663 of the Report the learned Judge observed : "if a suit is brought for the administration of a trust which, inter alia, relates to immovable property situate outside the jurisdiction of the Court and the only relief sought is that the trustee should be ordered duly to carry out the trust, the suit is not a suit for land. But if the relief claimed is not confined to an order for the enforcement of the trust, and the applicant claims e. g. a declaration of his nights to the possession of trust properties situate outside the jurisdiction, then, in my opinion, the suit would be a suit for land, and the Court would have no jurisdiction to entertain it." 62. IN (37) Vedabala Debee v. The Official Trustee I. L. R. 62 Cal. 1062, a testator died, leaving a will by which the official trustee was appointed executor and the plaintiff, one of his daughters as the first she bait; and the testator directed his estate, with a certain exception, to be vested in trust. Some of the trusts, in respect of land, were questioned by the plaintiff as void for uncertainty. It was contended that inasmuch as the plaintiff questioned the validity of the trusts or in other words, that those trusts were no nest in the eye of law the suit was a suit for land. Ameer Ali J. on an elaborate review of decided cases, held that "the High Court has jurisdiction to entertain suits for administration of trusts, declared by will or deed, for construction and for the determination of the validity and effect of such trusts, notwithstanding that, as a result of the decision, title will vest in certain persons to the exclusion of others and/or that those persons will be entitled to possession. " In my opinion, if an adjudication or the validity of a trust in respect of land does not make a suit a suit for land, am adjudication on the question whether on a construction of a document a trust came into existence, does not make the suit a suit for and. In either case it is the existence of a trust and not the title to the property which is primarily in dispute. 63. IN (38) Srinivasa, Moorthy v. Venkatavarada Iyengar 38 LA. 129 a suit was brought by three of the executors against a son of the testator as executor, trustee and sole residuary legatee, for accounts, for administration of the estate and for his removal from the office of the trustee. The defendant pleaded that the property was ancestral joint family property, that the will offended against the law and was inoperative and the entire estate had accrued to him by survivorship. He further contended that the immovable properties of the estate having been situate outside the original jurisdiction of the Madras High Court, the Court had no jurisdiction to entertain the suit. In delivering the judgment of the Privy Council Lord Macnaughten said that the question of jurisdiction was too plain for argument. It will be seen that in that case, although the defendant claimed title to the estate, the suit was held not to be a suit for land, the primary object of the suit not being to establish title to land nor did the fact that the validity of the trust in respect of the land was in question, make it a suit for land. 64. IN (39) Mahomedally Adamji v. Abdul Hossain A. I. R. 1924 Bombay 313 it was held that in a suit for administration of a testator's estate, the High Court can determine whether certain immovable properties situate outside the territorial limits of its jurisdiction belonged to the testator at the time of his death. Crump J. observed : "now if an administration suit as regards property situated outside the jurisdiction can be entertained by this Court, "it appears to me to follow almost of necessity that the question as to title of the property must be determined. Crump J. observed : "now if an administration suit as regards property situated outside the jurisdiction can be entertained by this Court, "it appears to me to follow almost of necessity that the question as to title of the property must be determined. It is impossible for the Court to administer the estate without deciding what the estate is and until the question of title has been settled, the court does not know as to on what property its orders are to operate." In (40) Moula Buksh v. Dharamchand Raniwalla and nrs. 65 C. W. N. 881 a suit was brought by an auction purchaser for a declaration that an auction sale of a certain immovable property situate outside jurisdiction was null and void on the ground of fraud, misrepresentation and for suppression of material defect in the seller's title. In rejecting the contention that the suit was one for land, Law J. observed: "where in the suit the question raised is directly and substantially a question of adjudication of title to land or for possession of land or where as a result of the decision in the suit, the title or possession or control of land is to be directly affected or interfered with, the suit must be held to be a suit for land. . . . . . If the question of title arises in the suit incidentally or collaterally for the purpose of granting a relief other than obtaining possession or declaration of title the suit cannot be held to be a suit for land." 65. THE learned Judge relied on the observation of Kania C. J, in Moolji Jaitha's case that "it is sufficient to say that taking the suit as a whole one has to consider whether it is for the purpose of obtaining a direction for possession or a declaration of title to land or the object of the suit is something different but involves the consideration of the question of title to land incidentally." 66. IN the case before Law J. no relief was asked for adjudication of title of possession of the property except an incidental finding that the seller had no saleable interest in the property sold by reason of prior assignment so as to enable the court to grant the reliefs asked for. IN the case before Law J. no relief was asked for adjudication of title of possession of the property except an incidental finding that the seller had no saleable interest in the property sold by reason of prior assignment so as to enable the court to grant the reliefs asked for. The meaning of the expression 'suit for land' came up for consideration by the Federal Court in (41) Moolji Jaitha and Co. v. K. S. and W. Mills Co. A. I. R. 1950 F. C. 83. The appellants who were the defendants in the suit were the secretaries of the plaintiff company and as such were in sole management of the mill of the plaintiff company. After terminating the agency of the defendants the plaintiff company brought a suit for various reliefs founded on alleged wrongful action by the defendants in breach of their fiduciary obligation in the course of their employment. In addition to the prayer for a general account of the defendant's management of the company's affairs and business during the period of their agency and other connected prayers, the plaintiff asked for two reliefs concerning certain lands situate outside the local limits of the original jurisdiction of the Bombay High Court which were alleged to have been acquired by the defendants on behalf of the plaintiff company out of the monies or properties belonging to the plaintiffs but in the name of the defendant only as benamdars or trustees of the plaintiffs. Those reliefs claimed by the plaintiff were : (a) that it may be declared that the said lands belonged to and are the property of the plaintiff company and that the defendants have no beneficial interest therein and (b) that the defendants may be ordered to execute all documents and deeds and do such as may be necessary for transferring the said lands to the name of the plaintiff company. An appellate Bench of the High Court had taken the view that it was not a suit for land although the question of title to the property had to be gone into. It was in substance a suit filed by principal against an agent for accounts. On appeal to the Federal Court, Kania, C. J. and Patanjali Sastri J. held that the suit was not a suit for land. Mahajan and B. K. Mukherjee, JJ. held that it was. It was in substance a suit filed by principal against an agent for accounts. On appeal to the Federal Court, Kania, C. J. and Patanjali Sastri J. held that the suit was not a suit for land. Mahajan and B. K. Mukherjee, JJ. held that it was. Fazl Ali J. having dismissed the appeal on a preliminary ground, did not decide the question of jurisdiction. Mahajan J. and B. K. Mukherjee J. held the suit to be a suit for land on the ground that a question of proprietary or possessory title was directly involved in the suit. 67. THERE was no difference of opinion between the learned Judges who decided the case as to the tests which have to be applied for determination of the question whether a suit is a suit for land. Kania, C. J. observed : "it is sufficient to say that taking the suit as a whole one has to consider whether it is for the purpose of obtaining a direction for possession or a decision of title to land or the object of the suit is something different but involves the consideration of the question of title to land indirectly." Mahajan J. said : "where incidentally in a suit the main purpose of which or the primary object of which is quite different, some relief is to be given about land the title to which not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression. In each case the Court has to determine the true nature of the suit." B. K. Mukherjee J. held : "the words 'suit for land' mean a suit for establishing title to land or any interest in the same or for possession or control there of and the decree sought for must be intended proprio vigore to be enforceable against and binding on the land itself." Patanjali Sastri J. said : "the words 'suit for land' besides obviously covering claims for recovery of possession or control of land are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or determination of any right or interest therein." Fazl Ali J. observed "if I had really felt that I was called upon to decide it, I would have agreed with the line of cases in which it has been held that broadly speaking the expression 'suit for land' covers the following three classes of suits- (1) suits for determination of title to land, (2) suits for possession of land and (3) other suits in which the relief claimed, if granted, would directly affect title to or possession of land. " kania C. J. held that on a proper construction of the plaint the claim in respect of the Jalgaon lands was a claim by a principal against his agent in respect of the property acquired by the agent by the use of the principal's funds. He found that clause 19 of the Letters Patent permits the court to apply the equitable principles of English law on the Original Side of the High Court inspite of clause 12 of the Letters Patent. As under those principles, the court can grant relief to a litigant in respect of lands situate outside the jurisdiction of the court against a party standing in fiduciary relationship to him, the court had jurisdiction to grant relief in respect of the Jalgaon lands. Patanjali Sastri J. construed the plaint and observed : "the plaintiffs do not claim possession or control of lands. Nor do they ask for am adjudication of title to lands. By their very demand for transfer they concede that the legal title is vested in thee defendants who have purchased the properties. Patanjali Sastri J. construed the plaint and observed : "the plaintiffs do not claim possession or control of lands. Nor do they ask for am adjudication of title to lands. By their very demand for transfer they concede that the legal title is vested in thee defendants who have purchased the properties. AH that the plaintiff seek is the fulfillment of the personal obligation, which, it is claimed, the law casts upon the defendants, to hold the properties for the benefit of the plaintiffs and to execute the necessary instruments conveying to them the legal title in those properties, an obligation arising out of the fiduciary relation between the parties and the circumstances relating to the acquisition of properties as alleged in the plaint." Mahajan J. held that the suit was one for land because in his opinion a plain reading of the plaint disclosed that the object of the suit so far as Jalgaon lands were concerned was to establish title to them. He said : "I am further of the opinion that the character of a suit cannot change by reason of the relationship between the parties being fiduciary. A suit for land would still be a suit for land even if the parties stand on fiduciary relationship to each other. If a plaintiff sues a defendant trustee for possession and declaration of title as to land alleged to belong to trust to which a trustee has set up a hostile title in breach of the trust, the suit is a suit for land irrespective of the circumstances of the fiduciary relationship." In the present case, the plaintiffs are not asking expressly or impliedly for a declaration of title to the land adversely to the trustees non arc they asking for possession of the land. They are merely claiming that the defendant bank in whom the land has vested is under a liability to discharge the obligations on the basis of which the land has vested in them. They are merely claiming that the defendant bank in whom the land has vested is under a liability to discharge the obligations on the basis of which the land has vested in them. The following observations of B. K. Mukherjee J. are of relevance in the Context of the present case : "i do not dispute as a proposition of law that if without raising any question of title or even admitting that the title is with the defendant, the plaintiff seeks to compel the defendant to execute a conveyance of the property in his favour in fulfillment of a personal obligation imposed on the defendant by reason of certain fiduciary relationship existing between him and the plaintiff, the suit would not be a suit for land according to the definition given above. There is no Claim of title to land in such cases and no decree is sought for, which would be operative on the property itself. It would be an action to enforce a personal obligation against the defendant and the fact that the obligation has relation to an immovable property is not at all material. " 68. IN my judgment, the present case is fully covered by the principles underlying those observations of Mukherjee J. Here, the plaintiffs by an amendment have deleted the prayer for declaration that the defendant bank is a trustee for sale of the estate. In my opinion, the presence or absence of such a prayer makes no difference to the nature of the case As Patanjali Shastri, J. observed : "inclusion or absence of a prayer is not decisive of the true nature of the suit nor is the order in which the prayers are alleged in the plaint. The substance or object of the suit has to be gathered from averments made in the plaint and on which the reliefs asked for in the prayer are based. The plaintiff may ask for a relief which the court may not grant. But there would be no justification to non-suit the plaintiff because of such a prayer. That would be insisting on the form of pleading and not on the substance." The primary object of the present suit is to prevent the trustee from committing a breach of trust by making an improvident sale and to administer the trust to carry out the objects of the trust. The trustee denies the trust. That would be insisting on the form of pleading and not on the substance." The primary object of the present suit is to prevent the trustee from committing a breach of trust by making an improvident sale and to administer the trust to carry out the objects of the trust. The trustee denies the trust. Whether there is a trust has to be decided but only incidentally, for the purpose of deciding the question of administration. Even if it is conceded that a decision on the question whether there is a trust is directly involved, that will not make the suit a suit for land because in the eye of law, the trustee is the owner of the estate and to say that he is a trustee is not to deny his title or claim a title adversely to him. The fact that the properties have vested in the trustees is not in dispute. Therefore, no adjudication of title to land is involved in the present suit, directly or indirectly. I have, therefore, no hesitation in holding that the suit is not a suit for land and the Court has jurisdiction to try the suit. I therefore, answer issue No. 9 in the affirmative. 69. ONE of the main enquiries to be made in this suit is the enquiry as to the adequacy or reasonableness of the price at which the defendant bank proposes to sell the Bhukailash estate to the defendant No. 2 under the agreement of June 15, 1961. The estate consists of 141 big has 7 cottahs of land at present, The general picture of the locality where the estate is situate is clear. It is situate at a short distance from the junction of Judges Court Road and Diamond Harbour Road, an important communication centre lying at the outskirts of the residential area of Alipore. Nevertheless, it lies in the vicinity of the Kidderpore docks. The area is well served by roads some of which are arterial roads. The major roads are all motorable, as for example, Bhukailash Road, Braunfeld Road, Mayurbhanj Road, Hossain Shah Road, Ekbalpore Road, Ekbalpore Lane and Ibrahim Road and a few more. Tram cars and buses are available. There is a market. There are missionary schools and private schools. There is a hospital run by the Port Commissioners, a charitable dispensary and a maternity clinic. There are underground sewers. Tram cars and buses are available. There is a market. There are missionary schools and private schools. There is a hospital run by the Port Commissioners, a charitable dispensary and a maternity clinic. There are underground sewers. All the Corporation roads have been electrified. Filtered and unfettered water connections are available. Telephones may be had. In fact, the bank's estate office has got a telephone. There is evidence that doctors, surgeons, advocates, middle class people and some men of property live in the area. A large number of residential houses have sprung up. There arc shops of the kind to be expected in a locality of this description. There are bus tees and fine residential buildings existing side by side. Motor able roads and narrow bus tee passages characterise the neighborhood. Facilities for drainage and sanitation exist but have not been availed of in many of the bus tees. Electricity and water are freely available. A large number of tube-wells have been sunk. The bank itself has sunk quite a few. On the whole, it will not be incorrect to describe the locality as a developing area. The Bhukailash estate although situate in the heart of an important developing area consists entirely of bus tees except for the market and the school which are masonry buildings of respectable dimensions. The estate has 700 tenants. They are all thika tenants and are not liable to be evicted except under the provisions of the Thika Tenancy Act. Most of the huts which have been erected by the tenants, have got service privies. There is no shortage of water. The bus tee passages, Mr. A.C. Banerjee, the estate manager, says, are kutcha roads although they lead up to Corporation roads which are all metalled or tarmac roads. There is evidence that a part of the estate consists of lands recovered by filling up tanks. Mr. Banerjee stated that the total area of tank filled land may be 50 big has. No accurate information, however, is available. Mr. Banerjee joined the service of the bank in 1951. During his time only one tank was filled up. He said that records are maintained by the bank. The record has not been produced and one is left to guess how much of the land has; been recovered out of tanks. There is evidence that water accumulates and remains for hours or days during the rainy season. During his time only one tank was filled up. He said that records are maintained by the bank. The record has not been produced and one is left to guess how much of the land has; been recovered out of tanks. There is evidence that water accumulates and remains for hours or days during the rainy season. Water-logging is unfortunately a general feature of the city and some of the most fashionable parts are not only not immune from it but are the worst sufferers. There is evidence again that the huts have been built on high plinths which have been ascribed to the low level of the sites. In answer it was suggested that high plinths are required under the Corporation rules. There is no satisfactory evidence that the land level of the Bhukailash estate is lower than that of the streets. 70. THE Bhukailash estate although consisting of 141 big has falls into several natural divisions. The estate does not consist of one compact and contiguous plot of land. It consists of a number of pockets or groups and single plots each capable of being dealt with separately. Most of the plots have access from municipal roads or from passages leading to municipal roads. Almost all of them have road frontages. Quite a number of the plots have access from more than one street. They can be divided conveniently for the purpose of sale without opening up passages for egress and ingress. The municipal roads as well as the bus tee passages are electrified. Mr. Banerjee, deposed that about a quarter of the huts in the Bhukailash estate has electric connection. Electric connection is, however, available for all. I may now describe the plots in greater detail. Plots A, B, C, D, E, f, G, H, I, J and K are all on Bhukailash Road, a major motor able road in the locality. Their areas are 10 cottahs, 10 cottahs, 4 big has 6 cottahs, 2 big has 18 cottahs, 4 big has 8 cottahs, 3 big has 11 cottahs, 13 big has 6 cottahs, 22 big has 11 cottahs, 12 cottahs, 6 big has and 8 cottahs, more or less, in their respective order. Of these A, B, I and K are reasonably small plots of 10 cottahs or a little more. Plot H is the largest plot consisting of 22 big has 11 cottahs. Of these A, B, I and K are reasonably small plots of 10 cottahs or a little more. Plot H is the largest plot consisting of 22 big has 11 cottahs. However, it has access from three sides. Another large plot, plot G, has access from four sides; plot J has access from three sides so have plots C, E and F. These are larger plots. As they are served by roads or passages from three or four sides, they can be divided into smaller plots, if necessary without using up much land in opening up passages for access. Purchasers may be available for larger plots for industrial purposes. Indian Oxygen and Balmer Lawrie have purchased large plots in the neighborhood for the purpose of their factories. Plots L, M and N are on Kaila Sarak Road. The road varies from 15 ft. to 40 ft. in width. The plots are of 8 cottahs, 12 cottahs and 1 bigha 10 cottahs respectively. They have access from more than one municipal road. In fact, the largest plot has access from Bhukailash Road. They all have good frontages. Plots 0, P, Q and R are on Mominpore Road. They are of 6 cottahs, I bigha 5 cottahs, 8 cottahs and 12 cottahs respectively. Except for plot P they all have direct access to Mominpore Road access to plot P can be had through two passages. Mominpore Road is fairly wide. Each of these plots has a good frontage. Plots S, V, W and X are on or in the vicinity of Ekbalpore Road. They are of 10 cottahs, 18 cottahs, 1 bigha 4 cottahs and 1 bigha respectively. Plot S which is not very large may be sold as a residential plot. The larger ones may have to be sub-divided unless they are sold to purchasers who might require them for industrial purposes. Plots S and V have direct access to Ekbalpore Road which varies in width from 30' ft. to 50' ft. Plot S has got an alternative access through a passage. Plot W has access through two passages and plot X through one. They all have good road frontages, Plots T and U are of 4 big has, and 6 big has 13 cottahs respectively and are the only plots access to which are not satisfactory. Access to plot T is through plot U and a passage. Plot W has access through two passages and plot X through one. They all have good road frontages, Plots T and U are of 4 big has, and 6 big has 13 cottahs respectively and are the only plots access to which are not satisfactory. Access to plot T is through plot U and a passage. Access to plot U is also through a passage. Plots Y and Z consisting of 1 bigha 5 cottahs, and 2 big has 5 cottahs are on Ibrahim Road. Apart from direct access to Ibrahim Road they have access to other municipal roads through passages. Ibrahim Road is a 60 ft. wide street which has been recently opened up. Plot A 1 is a plot of 11 cottahs. Access can be had from Ibrahim Road and also from a passage on the south. It may be sold as a residential plot or it may be conveniently sub-divided. Plot A/2 is a plot of 2 big has 15 cottahs on Dent Mission Road, a road 30' ft. wide. Access can be had from Dent Mission Road and Kaila Sarak Road. This plot may again be conveniently sub-divided having regard to its situation. Plots A/3, A/7, A/8 and A/9 are of 2 bigha 18 cottahs, 11 big has 10 cottahs, 3 big has and 4 big has 10 cottahs respectively. Together they cover an area of nearly 22 big has or 15% of the Bhukailash estate. Out of these, the school and the market are situated on 2 big has of land. They are masonry structures. They yield good rents. Mr. Hossain, the bank manager, himself deposed that the school and the market can be sold separately at good prices. These plots have direct access to Braunfeld Road. Moreover, plot A/7 has access through two passages and plots A/8 and A/9 have access through one. These plots are not far from Diamond Harbour Road. All these plots and specially plot A/7 are big plots. To sell them as residential plots, they may have to be subdivided. If they are sub-divided, the fact that they have access from more than one side will be a factor to their advantage. They may be sold, as they are to industrial purchasers. Plot A/4, a plot of 3 big has 5 cottahs has access from Mayurbhanj Road and Bhukailash Road where they are nearly 60' ft. wide. If they are sub-divided, the fact that they have access from more than one side will be a factor to their advantage. They may be sold, as they are to industrial purchasers. Plot A/4, a plot of 3 big has 5 cottahs has access from Mayurbhanj Road and Bhukailash Road where they are nearly 60' ft. wide. It is a corner plot with large frontages on either road. Plot A/5 which is a plot of 3 big has 8 cottahs has access from Mayurbhanj Road and also through a passage. Plot A/6 which is a plot of 10 big has access from Mayurbhanj Road, Mominpore Road and also through a passage. Plot A/10 is a plot of approximately 2 big has having direct access to Ekbalpore Lane. The street is nearly 40' ft. wide there. Access can be had to this plat also through a passage. Plots A/11, A/12 and A/13 are of 1 bigha, 3 big has 5 cottahs and 1 bigha 12 cottahs respectively. They all have direct access from Hossain Shah Road which is nearly 35' ft. wide. The last mentioned plot has also access from Bhukailash Road and the other two from other passages. They all have large frontages on Hossain Shah Road. 71. IN order to decide whether the defendant bank, in having agreed to sell the Bhukailash estate to the defendant No. 2 under the agreement of June 15, 1961, is making an improvident sale, that is to say, at a grossly inadequate price, the value of the property in June, 1961 has to be estimated. On behalf of the plaintiffs, evidence has been given by Mr. K. C. Pal and Mr. P. C. Chatterjee, valuers and engineers. They are on the panel of engineers of this court. Mr. Pal made a report on valuation of the property which has been made an exhibit in this suit (Ext. F. He said that he took into consideration the conditions of the lease dated August 29, 1919, the fact that apart from the market and the school the rest of the estate consists of bus tees in occupation of thika tenants. He gave oral evidence that he consulted the Corporation records, namely, the Land and Building Register for the years 1961 to 1965 where particulars of transactions in land have been entered and on the basis of those materials assessed the value of the Bhukailash estate. He gave oral evidence that he consulted the Corporation records, namely, the Land and Building Register for the years 1961 to 1965 where particulars of transactions in land have been entered and on the basis of those materials assessed the value of the Bhukailash estate. From the Corporation records he found that a plot of land situate at 9/1b, Ekbalpore Lane consisting of 1 cottah 14 chittaks and 39' sq. ft. was sold for Rs. 7331/ -. He was not, however, sure whether it was bus tee land or bastu land i. e. homestead land. He also found that premises No. 35, Mominpore Road, a plot of homestead land of 2 cottahs 10 chittaks with a brick built structure was sold for Rs. 15,000/- He calculated the value of the structure at Rs. 10,200/-, deducted 50% for depreciation and arrived at the figure of Rs. 5100.00 as the net value of the structure. Deducting Rs. 5100/- from Rs. 15000/- he calculated the value of the land at Rs. 9,900/ -. From Rs. 9,900/- he deducted the cost of litigation for evicting the tenant which he thought should be Rs. 150/- He also thought that normally it should take 5 years to evict a tenant. For those 5 years he calculated interest at 6% per annum on the purchase price which comes to Rs. 2970/- This was a deduction to be made from the value of the land. He also deducted a sum of Rs. 26. 76 paise as costs of mutation payable under the lease of 1919 Moreover, he deducted Rs. 529. 62 paise as the proportionate share of compensation to be paid to the landlord in the event of acquisition of the estate by the Land Acquisition authorities in terms of the lease of 1919. After making all these deductions, he arrived at the value of the land at Rs. 6223/- which comes to Rs. 2376/- per cottah. In another case he found that premises No. 18, Ekbalpore Road, a plot of vacant land, comprising 6 cottahs 6 chittaks was sold at a Court sale on 3rd February, 1957 for Rs. 20,000/-He imagined that if the land were occupied by thika tenants, litigation cost of Rs. 6223/- which comes to Rs. 2376/- per cottah. In another case he found that premises No. 18, Ekbalpore Road, a plot of vacant land, comprising 6 cottahs 6 chittaks was sold at a Court sale on 3rd February, 1957 for Rs. 20,000/-He imagined that if the land were occupied by thika tenants, litigation cost of Rs. 150/- should have been deducted; deduction should also have been made for interest at 6% per annum on the purchase price for 5 years which he thought is the usual time required for ejecting a tenant; he also deducted the costs of mutation and proportionate Compensation payable to the landlord, in the event of acquisition, in terms of the lease of 1919. On those hypotheses he arrived at the figure of Rs. 1944/- per cottah. 72. MR. Pal also referred to the sale of some other plots as for example, premises No. 2, Dent Mission Road and 74, Diamond Harbour Road. He, however, did not produce the Register of Sale of Land and Buildings from the custody of the Corporation of Calcutta on which he relied. It is difficult to see why he should calculate the cost of litigation at Rs. 125/- or Rs. 150/- for evicting a thika tenant. Moreover, there is no basis for holding that it takes 5 years to evict one; and then, how many thika tenants there may be per cottah of land is anybody's guess. The relation between the value of vacant land and land occupied by thika tenants can hardly be determined with any degree of precision. Circumstances will vary from one plot to another. Thika tenants may be evicted without protracted litigation in some cases but not in others. Litigation costs will vary from one case to another. Some litigations may terminate in the district court, others may go up in appeal to the High Court entailing heavier expenses. Depreciated value of the structures do not often represent their market value, specially in times of rising costs. Some structures depreciate more rapidly than others. Mr. Pal said that in 1956 he sold some bus tee land on Ultadanga Main Road at the price of Rs. 2000/- to Rs. 2500/- per cottah. He gave another instance. In 1962 the Calcutta Improvement trust acquired some bus tee land in Manicktolla for Rs. 1800/- to Rs. 2200/-per cottah. Some structures depreciate more rapidly than others. Mr. Pal said that in 1956 he sold some bus tee land on Ultadanga Main Road at the price of Rs. 2000/- to Rs. 2500/- per cottah. He gave another instance. In 1962 the Calcutta Improvement trust acquired some bus tee land in Manicktolla for Rs. 1800/- to Rs. 2200/-per cottah. In his evidence, he stated that as the property is large, a deduction of 35% should be made for sale in one lot. Moreover, for the forfeiture and re-entry clauses in the lease of 1919 a further deduction of 5% should be made. This again is a mere hypothesis. It is common knowledge that the larger the plot, the less will it fetch per unit. But then the Bhukailash estate, as I have said, is not a single unit. It consists of disparate plots or groups of plots. Some are more valuable than others by reason of their situation, their access and their frontage. Mr. Pal takes a transaction of sale, makes deductions for the cost of the building and arrives at the value of the land. Then he imagines the land to be occupied by thika tenants, never mind, by how many. He imagines that there is one thika tenant in each plot, imagines the cost of litigation to be Rs. 125/- or Rs. 150/-and imagines the time required for eviction to be 5 years. He is of opinion that the value of land in 1961 should have been Rs. 2160/- per cottah for bus tee land and the price of a small plot in Bhukailash estate should have been nearly Rs. 2000/- per cottah. In answer to question 29 he expressed the view that reasonable price for the Bhukailash estate should be in the neighborhood of rupees 37 lacs. In his opinion the property should not be valued on the basis of rent because the rents are not fair rents. He admitted that if the property is to be valued on the basis of income and the income is rupees one lac a year then rupees 15 lacs is a fair valuation. His valuation, he claimed, is partly based on the prospect of development of the estate. 73. IN my opinion, Mr. Pal's valuation or system of valuation is based on conjectures and hypotheses which are of too problematic a nature to be of any assistance in this case. 74. His valuation, he claimed, is partly based on the prospect of development of the estate. 73. IN my opinion, Mr. Pal's valuation or system of valuation is based on conjectures and hypotheses which are of too problematic a nature to be of any assistance in this case. 74. THE other expert witness called by the plaintiffs was Mr. P. C. Chatterjee. He stated that prices have been going up since 1958-1959. In answer to question 157 he said that he never valued bus tee properties. Bhukailash estate, he deposed, is situated in a developing area. In answer to question 155 he said that Rs, 500/- per cottah is a grossly inadequate price, for the estate. On behalf of the defendants Mr. H.K. Sarkar another valuer and engineer on the panel of this Court, gave evidence. He adopted the rental method of valuation. From the records of the bank he found that the net average income of the estate was Rs. 89,190/- per annum during years 1958 to 1960. He multiplied the average net annual rent by sixteen two-thirds to arrive at the capital value which yields 6% per annum. Applying this method, the value of the property, he said, comes to Rs. 14,76,512/ -. on the basis of the method of valuation adopted by him, he thought that the price of Rs. 500/- per cottah is fair. 75. I might add that none of the valuers called by the plaintiffs or the defendants had inspected or valued the plots or groups of plots separately or closely. They made a general inspection of the property by reference to the plan and gave their opinion on valuation of the property as a whole. No measurements were taken by any of the valuers. Mr. Pal's valuation, in my opinion, is based on fictions and conjectures. Mr. Chatterjee's opinion again does not rest on any evidence. Mr. Sarkar's system of valuation has the merit of simplicity but is far too mechanical to be of any assistance in a case of this kind. For one thing, Mr. Sarkar does not take into consideration the fact that the rents paid by the thika tenants may not be fair rents. It is not in dispute that the tenants are mostly very old tenants. It is common knowledge that because of Rent Restriction laws old tenants pay rents which are considerably less than the present market rents. Mr. Sarkar does not take into consideration the fact that the rents paid by the thika tenants may not be fair rents. It is not in dispute that the tenants are mostly very old tenants. It is common knowledge that because of Rent Restriction laws old tenants pay rents which are considerably less than the present market rents. Mr. Sarkar, in my opinion, should have also taken into consideration the fact that the Bhukailash estate is situated in a developing area. Moreover, he did not care to enquire whether the bank was or was not spending a disproportionately large sum of money for collection of rents, or in other words, whether the net income as it appears from the bank's records, is fair and legitimate. 76. IN the evidence given by the valuers and also in course of the argument, reference was made to a work on valuation by John Parks, namely, the Principles and Practice of Valuations. Mr. Parks was the Chief Valuer of the Calcutta Improvement Trust for a long time. He had an intimate knowledge of the characteristics and values of different types of lands and buildings in Calcutta. His work is of considerable assistance on principles of valuation. I may cite some of the passages in Parks' book on which counsel relied in course of their arguments. At page 25 of his book (2nd edition) Parks relies on the case of (42) Government of Bombay v. Merwanji Muncherji Cama 10 Bom. L. R. 1908 where it was said "in valuing ground by the capitalisation of a ground rent, we do not think that in any case more than 20 years' purchase should be allowed, and in the case of an unsecured rent we doubt whether more than sixteen and two-thirds years' purchase should be allowed. " If valuation is to be made on the basis of actual net yield alone then is no doubt that the basis suggested in that case should be adopted. The question is, however, whether that is a method which is to be adopted in this case in disregard of all other principles of valuation. At page 31 Mr. " If valuation is to be made on the basis of actual net yield alone then is no doubt that the basis suggested in that case should be adopted. The question is, however, whether that is a method which is to be adopted in this case in disregard of all other principles of valuation. At page 31 Mr. Parks himself recognises that "every case must be treated on its merits" and at pages 116 and 117 he says "rents paid by the tenants to the owners are often found to be low, that is to say, rents have no relation to fair rents which the land should yield having regard to its market value." He adds : "it cannot be said that because owners of bus tee lands charge and get low rents, there-fore, bus tee lands are not capable of fielding a fair rent." Then at page 64 of Parks' book (3rd edition) an instance is given of a case where the rental method of valuation was adopted in valuing one plot of land but not others. (43) Rathnamasari v. Collector of Salem A. I. R. 1923 Madras 332. The fact that the Bhukailash estate is situate in a developing area should not be ignored nor should the Court, in my opinion, ignore the fact that plots or groups of plots of land in the estate can be sold separately. The market and the school which are yielding a substantial income and are not occupied by thika tenants, can be separately sold at an advantage. Even if the rental method is adopted, the question will arise what is the fair income of the property ? Mr. Banerjee, the estate manager, has deposed that apart from establishment expenses, cost of collection alone came to Rs. 2000/- per month in 1960-61 i.e. Rs. 24,000/- a year. The gross rental income of the property is a little over rupees 2 lacs which means that nearly 10% to 12% of the income is spent by the bank by way of collection charges. At page 74 of Parks' book (3rd edition) it is said that the cost of collection and management will vary from 2% to 5% of the gross rental in accordance with the special circumstances of each case. At page 74 of Parks' book (3rd edition) it is said that the cost of collection and management will vary from 2% to 5% of the gross rental in accordance with the special circumstances of each case. It is, therefore, open to question whether the bank is not spending a disproportionately large sum of money in establishment charges and cost of collection thereby reducing the net income of the estate. 77. TO arrive at a reasonable estimate of the value of the property in 1961 it will be helpful, in my opinion, to examine the particulars of sales of land in the Bhukailash estate and its neighbourhood in the year 1961 as also in the preceding and following years. In 1943, the bank sold land measuring 1 bigha 2 cottahs and 3 chittaks. The bank has not disclosed at what price the land was sold and no reason has been given for non-disclosure in April 1946 the bank sold a plot of land, a portion of 3/1, Bhukailash Road, comprising an area of 16 cottahs 1 chittak and 35 sq. ft. at Rs. 2000/-per cottah. The plot had direct access from Bhukailash Road, where the bulk of the Bhukailash estate is situate. It is net clear whether the property was unoccupied or occupied by tenants though it is more likely than not, having regard to the recitals in the lease of 1819 and the Memorandum of Agreement of 1931 that the land was in occupation of tenants. In 1946 the Calcutta Improvement Trust acquired a portion of premises No. 5, Bhukailash Road comprising 1 bigha 6 cottahs and 2 chittaks of land and paid compensation at the rate of Rs. 2200/- per cottah. On March 3, 1958 a plot of 5 cottahs and 5 chittaks to which access was available only through a common passage was sold at Rs. 1850 per cottah. The plot was a portion of premises No. 1 Bindubasini Street. It was occupied by thika tenants (Ext. P. On April 9, 1958 the other portion of the same plot consisting of 4 cottahs and 15 chittaks occupied by thika tenants was sold at Rs. 2427/- per cottah (Ext. Q. On February 6, 1960 a plot of 3 cottahs of vacant land on Dolu Sarkar Lane, was sold at Rs. It was occupied by thika tenants (Ext. P. On April 9, 1958 the other portion of the same plot consisting of 4 cottahs and 15 chittaks occupied by thika tenants was sold at Rs. 2427/- per cottah (Ext. Q. On February 6, 1960 a plot of 3 cottahs of vacant land on Dolu Sarkar Lane, was sold at Rs. 3800/- per cottah (Ext, K. On February 19, 1960 another plot of vacant land comprising 3 cottahs and 4 chittaks on Dolu Sarkar Lane was sold at Rs. 3500/- per cottah (Ext. N.. On the same date two other plots of 2 cottahs 4 chittaks and 1 cottah 14 chittaks on Dolu Sarkar Lane were sold at Rs. 3500/- per cottah (Exts. I and J.. On April 6, 1960 two plots of 3 cottahs 5 chittaks and 3 cottahs 1 chittak of vacant land on Debi Chowdhury Road and Dolu Sarkar Lane were sold at Rs. 3500/- per cottah (Exts. H and L.. On September 14, 1961 the back portion of premises No. 5, Mayurbhanj Road consisting of 1 bigha 6 chittaks was purchased by Indian Oxygen for the purpose of their factory at Rs. 1900/-per cottah. It was a plot of bus tee land occupied by thika tenants and accessible only through a common passage (Ext. U. On August 14, 1961 a plot of 6 cottahs 2 chittaks was sold at Rs. 2000/- per cottah. The land was in occupation of thika tenants and access could be had only through a proposed common passage. The land though which the common passage was to be opened up was occupied by thika tenants. (Ext. EE. The plot of vacant land which, was sold at Rs. 3500/- per cottah on April 6, 1960 was re-sold on 31st January, 1962 at Rs. 5500/- per cottah (Ext L. This illustrates the sharp rise in land value between 1960 and 1962. On January 10, 1964 a vacant plot of 4 cottahs 4 chittaks on Sudhir Bose Road formerly known as Pipe Road, was sold at Rs. 800/- per cottah (Ext. O. On May 25, 1965 a plot with access from Ekbalpore Lane, through a 6 ft. common passage, was sold at Rs. 5750/-per cottah (Ext. HH) and on July 21, 1965 another plot of 10 cottahs 11 chittaks with access through a 50' ft. common passage from Mayurbhanj Road was sold at Rs. 2354/- per cottah. 800/- per cottah (Ext. O. On May 25, 1965 a plot with access from Ekbalpore Lane, through a 6 ft. common passage, was sold at Rs. 5750/-per cottah (Ext. HH) and on July 21, 1965 another plot of 10 cottahs 11 chittaks with access through a 50' ft. common passage from Mayurbhanj Road was sold at Rs. 2354/- per cottah. These plots were occupied by thika tenants at the time of sale (Exts. HH, Ext. R-S. 78. IN the petition which the defendant bank filled on 28th February, 1947 by way of objection to the rate of compensation proposed to be paid for the land acquired for the Calcutta Improvement trust it was claimed that the market price was Rs. 3000/- per cottah (Ext. Y. It was stated in the petition that "it is valuable property because it abuts on Bhukailash Road. " In this connection it is good to remember that a very substantial portion of the Bhukailash estate abuts on bhukailash Road. In a letter of 25th September, 1947 the bank stated that the highest offer it had received was Rs. 2750/- per cottah. In 1922 the Rajgarhias mortgaged three sets of properties in favour of the bank i. e. Calcutta properties, Hooghly properties and the Bhukailash estate. In the mortgage deed it is recited that the value of the mortgaged properties is rupees 28 lacs. It is at least arguable that the bank had accepted the said valuation". It is on record that out of the mortgaged properties the Calcutta properties were sold for Rs. 15,200/- and the Hooghly properties which were situated in the district of Howrah, Howrah having been a part of the Hooghly district in the old days were sold for Rs. 46,000/- and the Court confirmed the sale. They were initially directed to be sold at a price not below Rs. 1, 21,000. 00, but as they did not fetch the reserve price they were sold for a lesser sum. Even if deduction is made for the sum of Rs. 1, 21,000/- from the estimated value of the mortgaged properties the value of Bhukailash properties on the basis of recital in the mortgage deed comes to Rs. 26,79,000/- 79. IN a letter dated 26th June, 1956 addressed to the Head Office of the bank, the local manager of the bank wrote "land price in or around Calcutta is Rs. 1, 21,000/- from the estimated value of the mortgaged properties the value of Bhukailash properties on the basis of recital in the mortgage deed comes to Rs. 26,79,000/- 79. IN a letter dated 26th June, 1956 addressed to the Head Office of the bank, the local manager of the bank wrote "land price in or around Calcutta is Rs. 2000/ - per cottah minimum. At this rate the price of our land will work up to near about 561/2 lacs. The only backlog is that the land is tenanted and that eviction of bus tee tenants is a long drawn process." 80. IN 1919, the Rajgarhias paid a selami of Rs. 5,50,000/- for the Bhukailash estate. In the course of nearly half a century there have been significant developments in the neighborhood. Trade, commerce and industry have taken root in the locality. Underground drainage, filtered water, educational and medical facilities have become available. New roads have been built. Developments have taken place in the Bhukailash estate itself though perhaps not to the extent they have, in its immediate neighborhood. According to Mr. Banerjee and Mr. Dasgupts, nearly 50 big has out of 145 big has of land originally consisted of tanks. These tanks have been filled up. A market and a school have been built up. The bank has constructed 3000 ft. of drains, sunk tube-wells and opened passages. The locality has been electrified. Population has enormously increased and land values have gone up sharply but the rent of the properties has remained the same. There has been a steady increase in land values since 1945 as was judicially noticed in (44) Brindaban v. Kalipada A. I. R. 1966 Calcutta 205 at p. 209. In the context of these developments, and the sharp increase in land values has the land appreciated in value by only 175 percent since 1919 ? It was submitted that some of the terms and conditions of the lease of august 29, 1919 are onerous that the lessee is required to pay all rates, taxes, assessments, impositions and outgoings in respect of the premises that all arrears of rent reserved are to remain a charge on the demised premises that in case of assignment, under lease or sub-lease of a portion of the demised premises, a sum of Rs. 10/- per cottah shall be payable to the superior landlords as selami, that in the event of default in payment of rent the landlords shad be entitled to re-enter the premises and take possession and that if the demised land or any portion thereof is acquired for public purpose, the lessors shall be entitled to a share of the compensation money at the rate of Rs. 200/-per cottah. 81. THE lease is a lease in perpetuity. That itself confers a benefit; unlike a lease for a fixed period, the lease is not a wasting asset. There is no diminishing unexpired residue. That the lessees have to pay rates and taxes in respect of the property of which they are for all practical purposes, the owners, is only to be expected. Re entry clause in a Cease is usual. The mutation fee of Rs. 10/- per cottah is not much, specially in these times of inflation. The share of compensation payable to the lessors in the event of acquisition of the land is perhaps a little too high and some allowance has to he made for it. It is well to remember that although the value of land has undoubtedly risen since 1919 the quantum of compensation payable to the lessors has remained fixed. The benefit of appreciation in land value therefore goes entirely to the lessee. 82. THE rent of the estate was initially Rs. 18,000/- per annum. A small portion has been sold by the bank resulting in proportionate abatement of rent. It was argued, and quite justifiably, that the value of the estate is reduced by reason of the fact that except for the market and the school, it is occupied by thika tenants. It is difficult to eject thika tenants under the law and they can be evicted only by long drawn-out and costly litigation. Due allowance must be made for it. There is evidence however that Indian Oxygen Company Ltd. which recently purchased a large plot of land, has succeeded in ejecting thika tenants. Other purchasers of land have also evicted thika tenants in some cases. According to the evidence of Mr. Hossain, the bank manager, the bank itself has instituted proceedings for eviction, and some of those proceedings have been disposed of. 83. MR. Other purchasers of land have also evicted thika tenants in some cases. According to the evidence of Mr. Hossain, the bank manager, the bank itself has instituted proceedings for eviction, and some of those proceedings have been disposed of. 83. MR. Subimal Roy submitted that the property is not being sold at an undervalue having regard to the fact that in spite of diligent efforts over a number of years the bank has not succeeded in selling the property at a higher price. It is clear from the evidence given at the trial that the bank did not take any initiative, or any initiative worth mentioning, for sale of the property at any stage. Mr. Hossain said that apart from the records, hundreds of offers were made by unreliable brokers but they came to nothing. No particulars have been given. in any case, he does not say that the bank itself made any serious effort on its own, to sell the property. 84. FROM 1931 to 1943 there is no evidence of any attempt having been made to sell. In 1943, 1 bigha 2 cottahs 13 chittaks were sold in course of litigation and not in the usual course. Messrs. Sandersons and Morgans in their letter of March 15, 1944, wrote "there is no one willing to purchase the property either as a whole or in lots. " There is not a shred of evidence that any attempt was made by the bank to sell the property which proved abortive. On April, 1946 a plot of 16 cottahs was sold by the bank to Shew Prasad Shaw, may be, as I have said, at the purchaser's initiative. In 1946-47 a plot of land was acquired for the Calcutta Improvement Trust. That was a case of compulsory acquisition, not of sale. Under section 9 of the Banking Companies Act, the bank came under a statutory obligation to sell the property within a period of seven years. It is clear from the records that no effort was made by the bank to sell the property during that period. Between 1956 and 1961 seven offers were received by the bank to purchase the property but there is no evidence that any of those offers came as a result of the bank's efforts. 85. It is clear from the records that no effort was made by the bank to sell the property during that period. Between 1956 and 1961 seven offers were received by the bank to purchase the property but there is no evidence that any of those offers came as a result of the bank's efforts. 85. IT is difficult to see how the offer made by the defendant No. 2 is better than the one made by Gopal Collieries. By that offer, the bank was to collect the rents, issues and profits of the estate and apply them in satisfaction of its dues on account of the purchase money. Moreover, a property worth rupees 2 lacs was to be mortgaged in favour of the bank by way of earnest. The reasons given for turning down the offer of Gopal Collieries was that the offer involved considerable delay in realisation of the purchase money and advance of money against mortgage of immovable properties. The present offer made by the defendant No. 2 is open to the same objections, The price offered by Gopal Collieries was over Rs. 19 lacs. The one offered by the defendant No. 2 is only 15 lacs. Meanwhile, land value has gone up. 86. THERE is no satisfactory explanation as to why the proposed sale to Parimal Ghose did not materialise. He offered 20 lacs. He was willing to deposit Rs. 1 lac as earnest. Mr. Hossain deposed that a draft agreement was prepared and a sum of Rs. 1 lac was in fact deposited by him. His evidence that Ghose did not proceed in the matter because the property was a leasehold is belied by Ghose's letter dated 24th July, 1956. Ghose's offer was as good as the one made by the defendant No. 2, if not better. It was submitted on behalf of the plaintiffs that the bank has been compelled to enter into the agreement for sale with the defendant No. 2 under threat of exposing itself to penalties enjoined by section 46 of the Banking Companies Act. Suspensions of the operation of the Act under section 53 is an extraordinary measure, and the bank felt that it might invoke the relief under section 53 in vain. There is, therefore, it is submitted, an element of forced sale in the impugned transaction. Suspensions of the operation of the Act under section 53 is an extraordinary measure, and the bank felt that it might invoke the relief under section 53 in vain. There is, therefore, it is submitted, an element of forced sale in the impugned transaction. The question is not so much whether the bank is being forced to sell the property; the question is whether the bank is going to make an improvident sale at a grossly inadequate price. It is however not a little strange that the bank during all these years did not make any serious effort to sell the property although it was enjoined by statute to do so. The bank manager merely received offers and passed them on to the head office for consideration. The offers came by chance and not as a result of anything done by the bank. 87. THE bank never advertised the property for sale, as a whole or in lots, an obvious thing it should have done. It never engaged any estate agent, or at; least any reliable or respectable estate agent of whom there was no lack in the city. By his letter dated June 21, 1958 Mr. Hossain advised the Head Office that in view of the amount involved it would be difficult to find a purchaser for the property in its entirety. He proposed to advertise for sales of portions, which were likely to fetch higher prices. He also recommended that Talbot and Co., the leading estate agents might be contacted, through whom the bank should have been able to find purchasers for the school building, the market and other suitable portions at favourable rates. Nothing in that direction was done. The head office did not even reply to his letter which only means that those who were in control of affairs did not even apply their minds to the eminently reasonable suggestions made by the bank manager. 88. BY another letter dated June 26, 1956 Mr. Hossain intimated to the head office that the Government had a slum clearance project in view. The Government wanted to build tenements after clearing the slums to provide the displaced people with accommodation. Land price in Calcutta, it was said, was Rs. 2000/- per cottah minimum. "even if we are to offer this land to the Government, I am sure they will gladly pay at least Rs. The Government wanted to build tenements after clearing the slums to provide the displaced people with accommodation. Land price in Calcutta, it was said, was Rs. 2000/- per cottah minimum. "even if we are to offer this land to the Government, I am sure they will gladly pay at least Rs. 1500/- per cottah and at this rate the price will come up to near about Rs. 42 lacs. " He suggested that the Vice Chairman should write to the Chief Minister Dr. B. C. Roy in the matter. Nothing was done to follow up the suggestion. Mr. Husseins letter was not even answered. In the face of all this evidence, how can it be said that the defendant bank was watchful and alert, and was making diligent efforts to sell the property ? The bank never had the property valued by a valuer not even before it entered into the agreement with the defendant No. 2. The bank had, therefore, no idea of what the value of the property was and yet it was ready and willing to sell the property at the price offered by the defendant No. 2. These are, in my opinion, instances of caprice. In that view of the matter, it is of little consequence whether the bank is a trustee for sale or the done of a power in the nature of a trust. As the bank has acted capriciously in exercising its power the Court can and ought to interfere. 89. IT was sought to be argued by Mr. Ginwalla that in law a leasehold property cannot be assigned in part Mr. Roy Chowdhury did not go quite so far. He argued that it would be difficult to find a purchaser for a portion of the property because if the lessors did not consent to assignment of a portion and accept the assignee as their lessee, the assignee must remain liable for the entire rent. He referred to the note on liability of assignees of part of the demised premises to the lessor at p. 702 of Mulla's Transfer of Property fifth edition, and pointed out that there is a divergence of judicial opinion as to the liability of the assignee of a part of a leasehold property to the head lessor. The purchaser of a part of the Bhukailash estate will therefore be taking too great a risk. The purchaser of a part of the Bhukailash estate will therefore be taking too great a risk. In other words, he argued that it is not feasible to sell the property in separate lots. 90. THE argument is more academic than real. The fact remains that the bank had sold small portions of the property in 1943 and in 1945. The purchasers have registered their assignments in the sherista of the head lessor and have been accepted as their direct lessees. The head rent has been reduced to Rs. 1381-70 p. per month from Rs. 1500/- per month by abatement of rent. The lease of 1919 contains a provision for assignment, under lease or sub-lease of a part of the demised premises. The Agreement of 1931 also speaks of transfer of the property by sale or sub-lease as a whole or in separate lots. Mr. Hossain, the bank's local agent, himself said that the market and the school building could be sold separately at an advantage. He himself advised, as I have said, that the property should be sold in separate portions. There is no evidence oral or documentary, that any difficulty, legal or practical, was experienced by the bank in trying to sell a portion of the property. In the face of all this evidence, it is impossible to hold that sale in portions was or is not feasible and that the property has to be sold in one lot, if at all. The nature of the property, as we have seen, makes it easy and even desirable to sell the property in separate lots. 91. THE argument that the offer made by the defendant No. 2 is the best that the bank has been able to secure and therefore, the value offered is not grossly inadequate, breaks down. As I have said no effort was made by the bank on its own to sell the property the bank merely dealt with chance offers when they came. No house agent, was engaged; no advertisements were published. No attempt was made to self the property in separate lots or in its natural divisions; the eminently reasonable suggestions made by the local Agent of the bank for sale of the property were not even considered by the Head Office, resulting in failure to exercise the discretion vested in the trustee. 92. No attempt was made to self the property in separate lots or in its natural divisions; the eminently reasonable suggestions made by the local Agent of the bank for sale of the property were not even considered by the Head Office, resulting in failure to exercise the discretion vested in the trustee. 92. IT is also not a little strange, as I have said, that the property was never valued by the bank for the purpose of sale which the bank should have done. The whole matter was dealt with by the bank in a cavalier manner. It was submitted on behalf of the defendants that the Bhukailash estate should be valued by the rental method. The net yield of the property is in the neighborhood of Rs. 1 lac. The offer of Rs. 15 lacs, it is argued, is therefore, reasonable. As I have said establishment expenses and cost of collection appear to be too high. With reasonable economy, the net yield could be higher. Moreover, I am not satisfied that in valuing the property in this case rental method alone should be adopted. The potentialities of the property cannot be ignored. The prospect of sale in separate lots and by sub-division of existing plots to the best advantage of the parties is a prospect I am not prepared to ignore. The property is situated in a busy area of commercial importance in the vicinity of the port, at a reasonable distance from the heart of the city. Transport of ail descriptions is freely available. All reasonable amenities, one can have, if one is willing to pay for them. 93. IT appears from the evidence that development is going on in the locality. Fine modern residential houses have sprung up. Professional men and middle class people have come to live there. New roads have been opened up. The Bhukailash estate has not shared enough in the development. It is a backwater in an otherwise developing area. . Nevertheless, in valuing the estate, the character of the surroundings ought not to be left out of consideration. 94. I am not unmindful of the likely scarcity of buyers of very big properties. Estate duty, property tax and increase in rates and taxes are a major headache for big investors in land. . Nevertheless, in valuing the estate, the character of the surroundings ought not to be left out of consideration. 94. I am not unmindful of the likely scarcity of buyers of very big properties. Estate duty, property tax and increase in rates and taxes are a major headache for big investors in land. I am also fully conscious of the delay and expense involved in evicting thika tenants even where the tenants are liable to be evicted in law. I also realise that a big plot will fetch less per unit than a small plot will. But even after making all these allowances, I am of opinion that the price of Rs. 500/-per cottah is too much of an undervalue having regard to the prices at which plots of land have been sold in the neighborhood in the recent past, of which there are records. In coming to the conclusion, I have also been guided by the prices at which the bank itself sold some plots in 1946, the statements made on behalf of the bank itself in its objection petition filed in connection with acquisition of land in 1946 and in its correspondence with the Head Office at Bombay to which I have alluded. Even if Rs. 2000/- is accepted as the value of vacant land per cottah, which I think, is on the low side, and that is a figure which is accepted by the bank in its correspondence, I do not think it will be reasonable to knock off 75 percent of the value on the ground of occupation of the land by thika tenants. In these circumstances, I am of opinion that the price offered by the defendant No. 2 accepted by the bank is grossly inadequate. The bank is about to make an improvident sale and the plaintiffs are justified in asking for an injunction to restrain it. This is a case where illustration (b) to section 61 of the Trusts Act applies proprio vigore. 95. IT is alleged that the defendant bank as trustees have committed and are still committing breaches of trust, particulars whereof have been given in paragraph 24 of the plaint. 96. IN this connection, reference may be made to Halsbury's Laws of England, 3rd Edition, Vol. 38, page 1040 para. 1793. 95. IT is alleged that the defendant bank as trustees have committed and are still committing breaches of trust, particulars whereof have been given in paragraph 24 of the plaint. 96. IN this connection, reference may be made to Halsbury's Laws of England, 3rd Edition, Vol. 38, page 1040 para. 1793. There it is said "any act by a trustee in reference to the trust property in contravention of the duties imposed on him by the trust, or in excess of those duties, and any neglect or omission on his part to fulfill those duties constitutes a breach of trust." I propose to deal with those particulars in the order in which they appear. As for item (a) there is no evidence that the defendant bank has not maintained accounts in terms of the deed dated 13th December 1930. On the contrary, it appears from the letters of Messrs. Sandersons and Morgans dated 15th March, 1944 and 23rd March, 1944 and the oral evidence of Mr. Hossain that accounts have been maintained by the bank. As for item (d) no particulars of willful default or gross negligence have been given nor is there any evidence of such default or negligence. As for item (e) the agreement does not require the defendant bank to develop the property in any particular manner or to any particular extent and, therefore, the allegation that the defendant bank has not developed the property to the extent to which such development should have been made in terms of the said deed, lacks substance. Moreover no particulars have been given as to the extent to which the bank ought to have developed the property and no evidence has been led in that behalf. It cannot be said that the defendant bank has not maintained the property. The allegation, therefore, fails. As for item (f) there is no evidence that the defendant bank has committed waste or caused loss to the estate. As: for item (i) the question of the defendant bank not having accounted for large sums of money being the income of the said property cannot arise, having regard to the fact that the defendant bank has not rendered accounts. Items (b) and (j) contain the same allegations, namely, that the defendant bank has refused to render any accounts of the income of the trust estate. Admittedly that is so, Under the agreement of December 13. Items (b) and (j) contain the same allegations, namely, that the defendant bank has refused to render any accounts of the income of the trust estate. Admittedly that is so, Under the agreement of December 13. 1930 the defendant No. 1 has no obligation to render accounts to the plaintiffs but! as I have held that the defendant bank is a trustee for sale, the stipulation in the agreement of 1930 under which the mortgagors were precluded from asking for accounts and the bank absolved from liability to render accounts till after sale of the property must be held to be invalid having regard to the provisions of section 19 of the Trusts Act. In these circumstances, I must hold that by refusing to render accounts the defendant bank has committed breach of trust Items (c) and (k) relate to the failure of the defendant bank to sell the property in the course of 30 years. A trustee for sale has the power to postpone sale at its discretion even for an indefinite period unless by the terms of the trust he is required to sell the trust property within a specified period. That does not mean that a trustee for sale can adopt all attitude of indifference and pursue a course of inactivity for decades. If the sale is postponed for sufficient reason, surely no complaint can be legitimately made. In the present case, it appears that the defendant bank was under a duty to sell the property not only under the terms of the agreement of December 13, 1930 but also under the provisions of the Banking Companies Act. Once the Banking Companies Act came into operation it became incumbent on the bank to sell the property by 1956. Even apart from the statute, it was the duty of the bank to proceed in the matter of sale with reasonable diligence. On the evidence on record, I have found that the bank was completely lacking in initiative and diligence. Moreover, there is evidence that those in charge of the head office of the bank did not even apply their minds to suggestions and recommendations made by the local agent of the bank to expedite the sale of the property at a reasonable price. Moreover, there is evidence that those in charge of the head office of the bank did not even apply their minds to suggestions and recommendations made by the local agent of the bank to expedite the sale of the property at a reasonable price. That, in my opinion, amounts to failure on the part of the defendant bank to exercise its discretion in the matter and in the manner of sale. In that view, I must hold that the allegation as to failure of the bank to discharge its duties as trustee for sale made in sub-paragraphs (c) and (k) of paragraph 24 has been substantiated. 97. THE allegation in item (g) is that the defendant bank is denying that the plaintiffs are beneficiaries and or parties interested under the deed of 1930. The defendant bank is denying that it is a trustee for sale. The bank, however, never disputed the plaintiffs' right to a moiety of the surplus of the proceeds of sale. Be that as it may, for a trustee to deny -that he is a trustee is, in itself, a breach of trust. 98. IN the facts of this case I am bound to hold that by its failure to sell the property for no sufficient reason and by its refusal to render accounts, the defendant bank has committed breach of trust. I have no reason, however, to hold that the bank has acted malafide or dishonestly or with any improper motive. It is a case of passive not of active breach of trust. By its failure to exercise its discretion in respect of the made of sale, by total disregard of the usual procedure adopted for sale of properties and by entering into an agreement with the defendant No. 2 for an improvident sale, the defendant No. 1, in my opinion, has acted capriciously though not with any dishonest intention. In. these circumstances I answer issue No. 5 by holding that the defendant bank as trustee has committed breaches of the trust as pleaded in sub-paragraphs (b), (c), (h), (j) and (k) of paragraph 24 of the plaint. As for issue No. 7 there is no evidence that the plaintiffs have suffered any loss or damage by reason of any act of the defendants. I, therefore, answer the issue in the negative. The answer to issue No. 8 depends on the answer to issue No. 6. As for issue No. 7 there is no evidence that the plaintiffs have suffered any loss or damage by reason of any act of the defendants. I, therefore, answer the issue in the negative. The answer to issue No. 8 depends on the answer to issue No. 6. As I have answered issue No. 6 in the affirmative I answer issue No. 8 in like manner. In view of my answers to issues Nos. 2, 5 and 6, I must hold that the plaintiffs have plenty of cause of action and answer issue No. 12 in the negative. There is a prayer for a declaration that the agreement dated June 15, 1951 be declared void, delivered up and: cancelled. 99. THE plaintiffs are entitled to certain benefits under the agreement of December 13, 1930 viz., liquidation of their debt on the decree by sale of the properties, and a moiety of the surplus left of the proceeds of sale. The benefit of a contract is a property. Subject to certain exceptions, it is assignable as an actionable claim. 100. AS I have held that under the Agreement of June 15, 1961 the defendant bank is seeking to sell the estate for a grossly inadequate price to the detriment of the plaintiffs' interest, I must also hold that in the circumstances of the case the consideration or object of the agreement is not lawful because it involves or implies injury to the property of the plaintiffs within the meaning of section 23 of the Contract Act. The agreement is, therefore, void under section 24 of the Contract Act. I am further of opinion that the plaintiffs' apprehension that the instrument of June 15, 1961 which is void against the plaintiffs, if left outstanding may cause them serious injury, is reasonable. I adjudge the instrument of June 15, 1961 void and direct it to be delivered up and cancelled. I need hardly add that relief under section 39 of the Specific Relief Act is available to a person affected by an instrument although he is not a party to the instrument. 101. THE defendant No. 2 has paid Rs. 2,50,000/- by way of earnest and in part payment of the purchase price. I direct the defendant No. 1 to refund the same to the defendant No. 2. 102. THERE is a prayer for an order directing the defendant bank to render accounts. 101. THE defendant No. 2 has paid Rs. 2,50,000/- by way of earnest and in part payment of the purchase price. I direct the defendant No. 1 to refund the same to the defendant No. 2. 102. THERE is a prayer for an order directing the defendant bank to render accounts. Clause 2 of the agreement of December 13, 1930 provides that "the mortgagees will not be liable to render any account or explanation to the mortgagors in regard to debits made in the account and that the mortgagors will not be entitled to ask for any account or to question or dispute in any way the correctness thereof." Having regard to section 19 of the Trusts Act I am of opinion that the stipulations which provide that the defendant bank will not be liable to render any account to the mortgagors in regard to debits made in the account to be opened and kept under the agreement and the mortgagors will not be entitled to ask for any account, are void. The provisions that the mortgagees will not be liable to render any explanation to the mortgagors in regard to debits made in the said account and the mortgagors will not be entitled to question or dispute in any way the correctness of the said account arose out of a confidence reposed in and accepted by the trustee in the sense of section 3 of the Trusts Act and I uphold those provisions. The defendant bank will be liable at all reasonable times at the request of the plaintiffs, to furnish them with full and accurate information as to the amount and state of the trust property. The plaintiffs will be entitled to such information but they will not be entitled to any explanation in regard to debits made in the said account. They will be entitled to question the accuracy of the account but not the propriety of receipts and disbursements shown therein. 103. The plaintiffs will be entitled to such information but they will not be entitled to any explanation in regard to debits made in the said account. They will be entitled to question the accuracy of the account but not the propriety of receipts and disbursements shown therein. 103. CLAUSE 4 of the agreement provides that after transfer of the property fully by sale or sub-lease, the mortgagees will cause an account of their claim including costs, charges and expenses to be made up and adjusted and if after payment of all their dues and outgoings out of the proceeds of the said property, any balance is left, the same will be divided between the mortgagees and the mortgagors or their nominees in equal shares provided, however, the account so to be made up by the mortgagees shall be conclusive and final. In my opinion, the proceeds' of the said property do not mean merely the proceeds of sale. This construction is justified by the fact that under the decree the bank is entitled to charge interest on judgment at the rate of 6% per annum. There is also some evidence that in the account maintained by the bank under the agreement, the bank has been crediting the account with the rents, issues and profits of the property. It is true that the Deed of Assignment of February 12, 1931 provides "that the assignees will hereafter receive the rents, issues and profits of the said estate." It is also true that it provides that the right, title and interest of the mortgagors in the estate transferred to the defendant bank include the right to rents and profits of the said properties. As the estate vests in the trustee under the deed of assignment, so the right to rent, issues and profits also vest. The right is, however, a right to receive the usufruct of the estate. The property as well as the right to receive rents, issues and profits vested absolutely in the trustee for the object of the trust. That does not mean that the trustee is at liberty to appropriate the rents, issues and profits or is under no obligation to credit the same to the account of the trust estate. The property as well as the right to receive rents, issues and profits vested absolutely in the trustee for the object of the trust. That does not mean that the trustee is at liberty to appropriate the rents, issues and profits or is under no obligation to credit the same to the account of the trust estate. In that view of the matter I hold that on a proper construction of the Agreement of 1930 and the Deed of Assignment of 1931 all rents, issues and profits of the trust estate are to be credited to the account of the estate. 104. THE defendants have raised an issue on limitation. Counsel relied on (45) Kshirodemonee Dossee v. Doorgamonee Dossee I. L. R. 4 Cal. 455 and (46) Soondardas Thackcrseay v. Bal Laxmibai A. I. R. 1946 Bom. 131. In the former case, the Court held that the Language of section 10 of the Limitation Act is specifically framed so as to exclude implied trusts, or such trusts as the law would infer merely from the existence of particular facts or fiduciary relations. In the latter case, Chagla, C. J. said : "in this case a trust was brought into existence not by operation of law but by the intention of parties. "the legislature has made a sharp distinction between trusts created by the act of parties and certain obligations which are not trusts but which are considered to be in the nature of trusts. Section 10 does not apply in the case of a person whom the law looks upon as the trustee because he has to discharge certain obligations in the nature of a trust. It only applies to a trustee of a trust in the strict sense of the term, i. e. an express trust. " Counsel also relied on (47) Raja of Ramnad v. P. Tevar I. L. R. 44 Mad. 277. There, a suit was filed by the beneficiary of a trust against a mortgagee of trust properties for recovery of monies paid to the mortgagee by the trustee as interest on the mortgage debt. The plaintiff contended that the mortgage was created in breach of trust and the mortgagee was holding the monies paid to him by the trustee in trust for him. The plaintiff contended that the mortgage was created in breach of trust and the mortgagee was holding the monies paid to him by the trustee in trust for him. The Court found that it was impossible to hold that to mortgaged property vested in the mortgagee in trust specifically for the beneficiaries of the trust of which the mortgagee was trustee. That was not the intention of either party to the transaction. Section 10 of the Limitation Act was, therefore, held to be not applicable. 105. REFERENCE was made to the case of (48) Cunningham v. Foote 3 A. C. 974. There, on construction of a will, it was held that the will did not create a trust with regard to certain lands for payment of annuities and the claim for arrears of annuity was therefore not saved from the bar of limitation. 106. HERE the trust is an express trust. In Under hill on Trust, page 10, Article 7 para 1 it is said that no technical expressions are needed for the creation of an express trust. It is sufficient if the settlor indicates an intention to create a trust, and points out with reasonable certainty : (a) the trust property, (b) the beneficiaries anal (c) the purpose of the trust. In paragraph 2 it is said that whether an intention to create a trust is sufficiently indicated is, in each case, a question of interpretation and may even be inferred from the context. At page 21 it is said that the latitude of expression allowed to the creator of a trust is am instance of the maxim that "equity regards the intention rather than the form." Whenever intent is apparent, it will (other matters being in order) be carried into effect, however, crudely or elliptic ally it may have been expressed. In Lewin On Trusts, 16th Edition at page 8 it is said that a distinction may be drawn between express trusts and trusts arising by operation of law. Generally speaking, an express trust may be said to arise from the intention of a person to create a trust declared directly or indirectly." In the present case the trust has arisen from the intention of the parties. Generally speaking, an express trust may be said to arise from the intention of a person to create a trust declared directly or indirectly." In the present case the trust has arisen from the intention of the parties. The property has become vested in the defendant bank for the specific purpose of payment of arrears of rent to the superior landlords and for liquidation of debts due under the mortgage decree to the defendant bank. Section 10 of the Trusts Act is therefore, fully applicable and the suit is not barred by limitation. I, therefore, answer issue No. 10 in the negative. 107. IT was contended on behalf of the defendants though rather faintly, that the suit is premature. The defendant bank has denied the existence of the trust, its liability to render accounts, and has entered into an agreement for what I have held to be an improvident sale of the property. It cannot be said that in those circumstances the suit it premature. The issue No. 11 is, therefore, answered in the negative. 108. THE plaintiffs have asked for an order for administration of the trust estate. There is no evidence that the defendant bank has been lacking in good faith. If it has omitted to do what it should have done: as a trustee for sale, if it has not exercised its discretion with regard to the mode of sale, it has done so more out of indifference and apathy than on account of any lack of inclination to sell the property. At no stage did the bank aver that it was not willing to sell the property. It is a case of dereliction of duty, of omission rather than of commission. It is true that the defendant bank has failed to exercise care in the matter of sale which is required of a trustee. Had the defendant bank appreciated that it became a trustee for sale of the land it might have been more alert and active. The bank has been nationalised recently and today it is a public institution. In these circumstances I do not propose to appoint an administrator, at least, not at present, without giving the defendant bank a fair chance to make amends by making an effort to sell the estate at a reasonable price to the best advantage of the parties. The bank has been nationalised recently and today it is a public institution. In these circumstances I do not propose to appoint an administrator, at least, not at present, without giving the defendant bank a fair chance to make amends by making an effort to sell the estate at a reasonable price to the best advantage of the parties. The Court can exercise control under section 49 of the Trusts act on the discretionary power confer red on the trustee. I, therefore, propose to give necessary directions to the defendant No. 1 for sale of the property i do so, the more readily, in view of the submission made by counsel for the plaintiffs that all that his clients desire is that the defendant bank should sell the property in a proper manner. Before I conclude, I desire to say that the transcript of the arguments made available to me was of consider able assistance. The case was ably argued though a great deal of evidence, inconsequential and amorphous, might have been eliminated without any loss to any one. After a number of adjournments, hearing was concluded in january, 1969. 109. IT now remains for me to pronounce the order. There will be a declaration that the Agreement dated 15th June 1961 between the defendant no. 1 and the defendant No. 2 is not binding on the plaintiffs. The said instrument is adjudged void and is directed to be delivered up and can celled. The defendant No. 1 is directed to refund to the defendant No. 2 the sum of Rs. 2,50,000/- paid under the said Agreement. 110. THERE will be an injunction restraining the defendant No. 1 from transferring under the said Agreement the Bhukailash properties mentioned in the plaint. The defendant No. 1 is directed to render true accounts in respect of the said properties on the basis of the provisions contained in the Memorandum of Agreement dated December 13, 1930 except as hereinafter provided. The provisions that the mortgagees will not be liable to render any account to the mortgagors in regard to the debits made in the account to be opened and kept under the said Memorandum of Agreement and the mortgagors will not be entitled to ask for any account, are declared void and to be of no effect. The provisions that the mortgagees will not be liable to render any account to the mortgagors in regard to the debits made in the account to be opened and kept under the said Memorandum of Agreement and the mortgagors will not be entitled to ask for any account, are declared void and to be of no effect. The provision that, the mortgagees will not be liable to render any explanation to the mortgagors in regard to the debits made in the said account will stand. In rendering accounts, the defendant No. 1 will credit all rents, issues and profits of the said properties in the said account. 111. THE defendant No. 1 will be liable, at all reasonable times, at the request of the plaintiffs, to furnish them with full and accurate information as to the account and state of the said bhukailash properties. The plaintiffs will be entitled to such information but not to any explanation in regard to the debits made in the said account. They will be entitled to question the accuracy of the said account but not the propriety of the receipts and disbursements shown therein. 112. THE defendant No. 1 is directed to sell the Bhukailash properties by public auction or by private treaty in one lot or in separate lots with due expedition. In doing so, the said defendant will pay due regard to the feasibility of selling the said properties in separate lots and of dividing or sub-dividing existing plots. Before entering into any agreement for sale or before selling the said pro parties, the defendant No. 1 will give three weeks' notice to the plaintiffs' solicitors. The plaintiffs will be at liberty to bring offers for purchase of the said properties. For the purpose of sale, the defendant No. 1 is directed to value the said properties as a whole and also in convenient lots by a valuer of repute and advertise the properties for sale in newspapers, and at its discretion through other mediums as well. The defendant no. 1 is also directed to engage the services of an estate agent or estate agents of repute. 113. THE defendant No. 1 is further directed to give all relevant information with regard to valuation, advertisements, and steps taken by it for sale of the said properties to the plaintiffs' solicitors, at their request. 114. The defendant no. 1 is also directed to engage the services of an estate agent or estate agents of repute. 113. THE defendant No. 1 is further directed to give all relevant information with regard to valuation, advertisements, and steps taken by it for sale of the said properties to the plaintiffs' solicitors, at their request. 114. AFTER sale of the said properties, the defendant No. 1 is directed to dispose of the proceeds of the said properties including the proceeds of sale in accordance with the terms of the memorandum of Agreement dated December 13, 1930. The defendant No. 1 will pay the plaintiffs their costs of and incidental to the suit. The defendant No. 2 will pay and bear its own costs. Certified for two counsel Liberty to apply.