PARBATI SHANKAR SEAL v. SUBAL CHARAN SEAL — 1979 DIGILAW 342 (CAL)

MANJULA BOSE, J. ( 1 ) THIS suit instituted on April 20, 1962 by Radheshyam Seal and Sabitri Seal as Trustees (both since deceased), inter alia, for eviction of the defendant from premises No. 4 Krishna Behari Sen Street, Calcutta, arises out of unfortunate disputes between parents and son. ( 2 ) IN the plaint it is, inter alia, contended that Radheshyam Seal, the owner of the suit premises, by a deed dated September 1, 1937 settled certain properties, including the suit property upon trust and appointed himself and his wife Sabitri Seal, the Trustees thereof. It is contended that since execution of the said deed of trust the suit premises vested in the plaintiffs as Trustees and at all material times they acted as such. The said Trustees Radheshyam Seal and Sabitri Seal at the request of the defendant in or about January, 1957 allowed him to live in the rear portion of the suit premises, more particularly described in paragraph 4 thereof, and since the said time the defendant is residing therein with leave and license of the trustees. By Solicitor's letter dated December 5, 1961 the plaintiffs cancelled and revoked the leave and licence granted to the defendant and called upon him to quit and vacate the said back portion and make over vacant and peaceful possession thereof to the plaintiff, which the defendant failed and neglected to do. The plaintiffs claim Rs. 348/- by way of damages at the rate of Rs. 3/- per day for use and occupation of the said portion from January 5, 1962 to April 30, 1962 and also claim possession of the suit premises. ( 3 ) RADHESHYAM Seal the original plaintiff No. 1 died during the pendency of the suit on June 25, 1962 leaving Smt. Seal, his wife as the sole surviving trustee, and the plaint was accordingly amended by order of September 7, 1962. On or about February 26, 1975 the original plaintiff No. 2 Smt. Sabitri Seal died, and by an order dated September 8, 1976 the present plaintiffs, the two other sons of the original plaintiffs were appointed new Trustees. On or about February 26, 1975 the original plaintiff No. 2 Smt. Sabitri Seal died, and by an order dated September 8, 1976 the present plaintiffs, the two other sons of the original plaintiffs were appointed new Trustees. It is contended that upon the death of Sabitri Seal and upon appointment of the plaintiffs as new Trustees they become entitled to proceed with the suit, and that by deeds dated December 28, 1956 and December 10, 1962 the entire trust estate devolved on the present plaintiffs as trustees. ( 4 ) IN the written statement filed by the defendant whilst admitting Radheshyam Seal to be the owner of suit the premises, and whilst accepting that a Trust had been created by him as stated in the plaint, it is contended that since January 1957, the defendant had been in exclusive possession of the first floor of the suit premises as a tenant and it is denied that he had been residing therein with the leave and licence of the plaintiffs. It is further urged that as a beneficiary under the Trust Deed of September 9, 1937 the defendant has a valuable and substantial interest in the trust property including the suit premises. It is contended that at the end of 1956 sharp disputes between the defendant on the one hand and his parents and/or his two elder brothers (the present plaintiffs) on the other, were settled by an agreement entered upon in January 1957, whereunder the defendant agreed to pay one third of Corporation Taxes and Electric Bills of the entire premises and in consideration thereof the original plaintiffs leased out the first floor of the premises to the defendant. ( 5 ) WHILE admitting receipt of the plaintiff's Solicitors letter dated December 5, 1961 it is denied that the defendant is staying at the suit premises under any alleged leave and licence. It is contended that the purported revocation of the alleged license was illegal, invalid, inoperative and not binding on the defendant. ( 5 ) WHILE admitting receipt of the plaintiff's Solicitors letter dated December 5, 1961 it is denied that the defendant is staying at the suit premises under any alleged leave and licence. It is contended that the purported revocation of the alleged license was illegal, invalid, inoperative and not binding on the defendant. ( 6 ) IN additional written statement filed by the defendant on January 30, 1979 it was inter alia contended that the original plaintiffs held the trust properties not as owners but as trustees for the benefit of the beneficiaries, their three sons, and that after the death of Radheshyam Seal and Sabitri Seal, the Trust created by the deed dated September 1, 1937 was extinguished under Sec. 77 (a) of the Indian Trust Act. On their death, the Trust property having vested upon the three beneficiaries, the instant suit had abated, and the right to sue did not survive after their death. It is urged that the present plaintiffs being the beneficiaries are not entitled in law to be substituted as plaintiffs, and that after the death of the original plaintiffs the suit property having vested in their three sons as beneficiaries a partition suit No. 729 of 1977 has been instituted by the defendant, which is still pending. It is contended that the order dated September 8, 1976 whereby the plaintiffs have been appointed trustees is void ab initio, as the Court had no jurisdiction to appoint a beneficiary whose interest is in conflict with another beneficiary as a trustee. It is further alleged that the deeds of appointment dated December 28, 1956 and December 10, 1962 are sham and colourable documents, the validity whereof has been challenged by the defendant in the partition suit. In any event, the original plaintiff's not having relied upon the said deeds when this suit was caused to be instituted by them on April 30, 1962, the present plaintiffs cannot in the garb of an amendment add a new cause of action by introducing new facts. ( 7 ) AN additional written statement was filed by the substituted plaintiffs inter alia alleging that by the deed of appointment dated December 28, 1956, the defendant has ceased to be a beneficiary. It is further denied that the Trust stood extinguished and/or that the said trust properties have vested in the defendant. ( 7 ) AN additional written statement was filed by the substituted plaintiffs inter alia alleging that by the deed of appointment dated December 28, 1956, the defendant has ceased to be a beneficiary. It is further denied that the Trust stood extinguished and/or that the said trust properties have vested in the defendant. It is also denied that the said order dated September 8, 1976 is void ab initio and/or not binding on the defendant as alleged. ( 8 ) THE following issues were raised and settled at the trial: i s s u e s :1. IS the defendant residing in a portion of the suit premises with leave and licence of Radheshyam Seal and Smt. Sabitri Seal as alleged in paragraph 4 of the plaint ?2. Since January 1957 did the defendant have exclusive possession of the first floor as tenant as alleged in paragraphs 4 and 8 of the original written statement. 3. After the death of Radheshyam Seal and Smt. Sabitri Seal did the trust properties vest in the three sons of the Trustees and is the defendants beneficiary thereof under the Deed of Trust dated September 1,d 1937 ?4. Are the provisions of the Trust Deed void and has the Trust extinguished itself under sections 77 (a) and (b) of the Indian Trust Act, 1882 and/or any ground as alleged in paragraphs 2 and 11 of the additional written statement of the defendant ?5. Are the substituted plaintiffs not entitled to proceed with the suit against the defendant as alleged in paragraphs 3 and 12 of the additional written statement6. Is the order dated September 8, 1976 void ab inition as alleged in paragraph 9 of the additional written statement ?7. Can the substituted plaintiffs rely on a new cause of action not pleaded by the original plaintiffs and claim decree on the basis of the deeds dated December 28, 1956 and December 10, 1962 ? 8. To what reliefs, if any, are the plaintiffs entitled ? ( 9 ) IT was recorded that Mr. Can the substituted plaintiffs rely on a new cause of action not pleaded by the original plaintiffs and claim decree on the basis of the deeds dated December 28, 1956 and December 10, 1962 ? 8. To what reliefs, if any, are the plaintiffs entitled ? ( 9 ) IT was recorded that Mr. Sibaji Mitra, Counsel on behalf of the defendant wanted to raise an issue on adverse possession which plea this court disallowed as this was not the case made out by the defendant in his original written statement filed on June 18, 1962, and in fact, in the said original written statement the defendant claimed to have exclusive possession of the premises as a tenant on the basis of the allegation made in paragraph 4 of the original written statement. In that view of the matter, the court did not allow any issue to be raised on adverse possession, which was brought in by an additional plea in the additional written statement filed by the defendant as late as on January 30, 1979. ( 10 ) AFTER the above issues were raised, Mr. Biswas appearing on behalf of the defendant on instructions submits that he is giving up Issue No. 2 to the extent that he will not pres his claim as a tenant as alleged in paragraphs 4 and 8 of the original written statement. ( 11 ) PARBATI Sankar Seal, the present plaintiff No. 1 and the eldest son of the late Radheshyam Seal was the only witness who offered himself for examination, whereas the defendant examined himself, his wife Basanti Seal and their eldest son, Sujit Kumar Seal. It is however not necessary to discuss their respective evidence in detail and it is sufficient to note that the undisputed facts emerging therefrom are that since 1956-1957 there were bitter relationship between the father, the mother and the two present plaintiffs on the one hand, and the defendant on the other, leading to police complaints being lodged by the father against the defendant son, and the defendant against his brothers. Radheshyam Seal at one times also sought protection of a superior officer of the department where his son was employed namely one Mr. M. A. Siddique, Senior Deputy Accountant, General Posts and Telegraphs, Calcutta, and by a letter dated May 25, 1961 (Ex. Radheshyam Seal at one times also sought protection of a superior officer of the department where his son was employed namely one Mr. M. A. Siddique, Senior Deputy Accountant, General Posts and Telegraphs, Calcutta, and by a letter dated May 25, 1961 (Ex. J) made a grievance to him of the disorderly conduct of the defendant and requested his intervention in the mater. It is not in dispute that such quarrels led the father at the instance of relation and friends to separate the defendant from the rest of his family in December, 1956 or early 1957, and that the defendant along with his family members were put in exclusive, separate and independent occupation of the rear portion of the ground and first floors of the suit premises, having a separate entrance and a separate staircase, and since the said time the defendant is in possession thereof. By Ex. NI the letter dated 5. 12. 61 he is sought to be ejected from the said portion of the suit premises on the ground of revocation of leave and license to reside therein. It is also not disputed that Radheshyam Seal the sole owner of the suit premises conveyed the same unto himself and his wife the original plaintiffs as trustees pursuant to a Deed of Trust executed by him on September 1, 1937 (Ex. A) in consideration of love and affection for his wife, and children. ( 12 ) MR. T. K. Biswas, learned Counsel for the defendant has contended, that the concept of leave and licence is not at all applicable to the facts of the case as: - (I) By the deed of trust dated September the 1st, 1937 (Ex. A) the settlor namely the original plaintiff No. 1 divested himself of inter alia the suit property and the same was transferred and conveyed unto himself and his wife the original plaintiff No. 2 as trustees for the purpose and/or use of the trust, namely, for the benefit of their sons and grandsons. The beneficial interest thereof thus vested in that three sons of the settlor the moment the trust deed was executed. The trustees, as persons in possession of the Trust, have no right or authority to treat trust property as their own. Reliance is placed on (a) B. K. Mukherjee's Hindu Law of Religious and Charitable Trust, 3rd Edn. The beneficial interest thereof thus vested in that three sons of the settlor the moment the trust deed was executed. The trustees, as persons in possession of the Trust, have no right or authority to treat trust property as their own. Reliance is placed on (a) B. K. Mukherjee's Hindu Law of Religious and Charitable Trust, 3rd Edn. At pages 4 and 5, (b) Hanbury's Modern Equity, 8th Edn. Page 110 and to (c) Sections 52 and 53 of Easement Act of 1882 wherein the definition of licence is only made attributable to an owner. (II) Trustees have no power to divest a beneficiary of his vested interest in the suit premises an cannot eject him therefrom, the same being a trust property; (III) The concept of leave and licence is also unknown to the personal laws of the Hindus. Under the Dayabhaga system of Hindus Law by which the parties are admittedly governed, Radheshyam Seal no doubt was the absolute owner and had the right to disinherit his heirs, but in a joint and undivided Hindu Family it is the privilege of all members to reside in the dwelling house as a natural condition of Hindu Society and severance of the Hindu Joint Family can only take place upon disruption. Mere separation in food and mess does not connote any disruption of the joint family. The initial induction of the defendant in the suit premises was by virtue of his status as a son born into the said family. For the proposition that by virtue of his status the defendant has a right to reside at the suit premises, reliance is placed on (1) National Provincial Bank Ltd. v. Ainsworth, reported in (1965) Appeal cases 1175 at 1177. In that case the court, inter alia, held: - "a wife has a right to be in occupation of the matrimonial home by virtue of her status as a wife and not by virtue of any leave or licence of her husband. " (IV) It being admitted that certain disputes between family members were settled on the basis of an agreement entered upon during the end of 1956 and/or early 1957 there is no scope for expounding the doctrine of leave or licence. " (IV) It being admitted that certain disputes between family members were settled on the basis of an agreement entered upon during the end of 1956 and/or early 1957 there is no scope for expounding the doctrine of leave or licence. As such the agreement is binding on the original plaintiffs as a family arrangement and they and/or the present plaintiffs are precluded from ejecting the defendant from the suit premises. In support of this proposition, reliance is placed upon (2) Kale and Others v. Deputy Director of Consolidation and Others, reported in A. I. R. 1976 S. C. 807. It is contended that Ex. J, the letter dated May 25, 1961 written in the hand of the original plaintiff No. 1 fully corroborated the case of a family settlement and this has also been admitted by the plaintiff, Parbati Seal in questions 124 to 126. Admittedly, it is the case of both the parties that there were serious disputes between father and son. Any arrangement thus arrived at in settlement of such disputes is final and binding on the parties to the settlement. In the Supreme Court decision cited the Court discussed and reviewed several discussions at length on the value of a family arrangement and the respective obligations of parties thereunder and held that if the same was entered upon with a view to settle disputes once and for all in order to buy peace of mind and bring about complete harmony and good will, such an arrangement will be governed by a special equity. Reliance is also placed on Kerr on Fraud, 7th Edition (1952) P. 364, and (3) Maturi Pullaiah v. Maturi Narasimham, reported in A. I. R. 1966 S. C. 1836. (V) Exclusive possession by the defendant is also a material factor which raises a presumption in favour of the defendant that he is not a licencee as urged by the plaintiffs. Reliance is placed on (4) Associated Hotels of India Ltd. v. R. N. Kapoor, reported in AIR 1959 SC 1262 . (V) Exclusive possession by the defendant is also a material factor which raises a presumption in favour of the defendant that he is not a licencee as urged by the plaintiffs. Reliance is placed on (4) Associated Hotels of India Ltd. v. R. N. Kapoor, reported in AIR 1959 SC 1262 . In this case the issue was whether the defendant was a lessee or a licencee and the court held, inter alia, that if a party gets exclusive possession of the property, prima facie he is considered to be a tenant and if the document only permits another to make use of the property of which the legal possession continues with the owner, it is a licencee. For the same principles reliance is also placed on (5) Durjendra Krishna v. Kesham reported in AIR 1953 Cal. 147 ; (VI) Alternatively it is contended that the agreement entered upon in 1956 created a contractual licence in favour of the defendant and he has an equitable interest in the land as an occupier. In support thereof (6) Bannister v. Bannister, reported in 1948 (2) All. ER 133 is cited. In that case the Court, inter alia, held that an oral undertaking by a plaintiff purchaser to permit vendor to occupy a cottage rent free, created a constructive trust and such oral undertaking created a life interest in favour of the defendant, determinable on the defendant's ceasing to live therein, and as such the plaintiff was not entitled to an order for possession. For the same proposition (7) Binions and Anr. v. Evans, reported in AIR 1972 (2) All ER 70 is cited. ( 13 ) ON the question of validity of the order of September 8, 1976 and on the issue as to whether the plaintiffs are entitled to proceed with the suit against the defendant, Mr. Biswas submitted that the said order is void ab initio and a nullity. It is urged that where jurisdiction is limited and court is not competent to pass an order, such an order if passed is void. Reliance is placed on (8) Official trustee and Ors. v. Sachindra Nath Chatterjee and Anr. , reported in AIR 1969 SC 823 . In that case it was, inter alia, held: -"what is relevant is whether he had the power to grant the relief asked for in the application made by the settler. Reliance is placed on (8) Official trustee and Ors. v. Sachindra Nath Chatterjee and Anr. , reported in AIR 1969 SC 823 . In that case it was, inter alia, held: -"what is relevant is whether he had the power to grant the relief asked for in the application made by the settler. That we think is the essence of the matter. It cannot be disputed that if it is held that the learned Judge had competence to pronounce on the issue presented for his decision then the fact that he decided that issue illegally or incorrectly, is wholely besides the point. " ( 14 ) MY attention was also drawn to the records of the court namely the petition for appointment of a trustee under Section 74 of the Indian Trust Act and particularly to paragraphs 16 and 17 thereof wherein the petitioners claimed absolute beneficial interest in the three trust properties by virtue of certain deeds attached to the petition. Relying on this petition Mr. Biswas contends - (a) that on the face of this petition the court should not have appointed trustees under section 73 of the Indian Trust Act, as it was alleged therein that the entire beneficial interest had devolved on the petitioners and that the trust had come to an end. (b) the trust property being admittedly outside the jurisdiction of the court no leave under clause 12 of the Letters Patent should have been granted, and, (c) that trust deed attached to the petition showed that the property was valued at Rs. 15,000/- only, and the court had no pecuniary jurisdiction in the matter. ( 15 ) PLACING reliance on (9) Kiron Singh and Ors. v. Chaman Paswan and Ors. , reported in AIR 1951 S. C. 340 it is contended that if the order is a nullity the same may be challenged at any time. In that case the court, inter alia, having found that the decree passed was without jurisdiction and a nullity held that the invalidity thereof could be set up whenever and wherever it is sought to be enforced or relied upon. It is urged further that if the court takes into consideration a factor which it has no right to take into account, such a decision is a nullity. In support of this proposition reliance is placed on (10) Anisminic Ltd. v. Foreign Compensation Commission and Anr. It is urged further that if the court takes into consideration a factor which it has no right to take into account, such a decision is a nullity. In support of this proposition reliance is placed on (10) Anisminic Ltd. v. Foreign Compensation Commission and Anr. , reported in 1969 (1) All. E. R. 208. It is contended that if the deeds annexed to the petition had been taken into consideration, no trustees could have been appointed as the allegations were that the trust had come to an end. As such, it is contended that the court on the face of the allegations, had no power to appoint trustees. For the same proposition reliance is placed on (11) M. L. Sethi v. Shri R. P. Kapur, reported in AIR 1972 SC 2379 which dealt with the concept of jurisdiction by holding that any error of law can be reckoned as jurisdictional and inter alia held that this was "perilously close to saying that court has jurisdiction if the decision is right in law but none if it is wrong. " ( 16 ) CONSTRUING the trust deed (Ex. A) and placing reliance on Art. 398 of Mulla's Hindu law, 14th Edition p. 479 it is next contended (i) that the special power of appointment is unknown to Hindu Law (ii) alternatively, if held that the defendant has no right to reside in the suit premises the beneficial interest in favour of his son is accelerated, and the defendant residing at his son's residence is not liable to be ejected therefrom. Reliance is placed on Keeton "law of Trust", 9th Edn. (1967) page 333 which relevant passage reads : -"it has long been an established doctrine in the law of wills that where there is a gift in remainder falling upon a life interest and the life interest fails to take effect e. g. by disclaimer, then the remainder is accelerated and the beneficiary is entitle to it forthwith. " ( 17 ) LASTLY placing reliance on (12) Moran mar Basselios Catholicos and Another v. Most Rev. Mar Poulose Athansius and Ors. , reported in AIR 1954 S. C. 526 it is urged that no decree for ejectment can be passed in plaintiffs' favour unless first established they have title to the suit premises. The original plaintiffs not being the owners of the suit premises Ex. Mar Poulose Athansius and Ors. , reported in AIR 1954 S. C. 526 it is urged that no decree for ejectment can be passed in plaintiffs' favour unless first established they have title to the suit premises. The original plaintiffs not being the owners of the suit premises Ex. NI the letter of revocation issued on the basis of ownership is bad, and of no effect. ( 18 ) MR. Bachawat learned Counsel for the plaintiffs on the other hand relying on the admitted facts, namely, that the original plaintiff no. 1 Radheshyam Seal was the owner of the suit premises and that on September 1, 1937 a trust deed was executed by him in respect thereof, contends that by this deed the settler conveyed and/or transferred the trust properties unto himself and his wife as trustees and since the said date the suit premises vested in the original plaintiffs as trustees and they had interest therein as legal owners and as such were necessarily competent both to grant and revoke leave or licence to the defendant to reside therein. It is in evidence that in 1956/1957 there were great disputes between the father and son which fact is also admitted in paragraph 7 of the written statement. This Court is really not concerned with the magnitude or nature of such disputes admittedly settled on the basis of an arrangement whereunder the defendant was allowed to reside in a separate portion of the suit premises, and such permission was given by the father as a personal privilege to the son on the basis of a bare licence and nothing further. In the facts of the instant case it is thus for the court to ascertain the intention of the parties when considering the agreement entered upon in 1956-1957. It is pointed out that in the written statement the defence taken had been that such an agreement resulted in a tenancy right created in favour of the defendant which was ultimately not pressed. It is contended that the arrangement entered upon for a peaceful existence not having worked out, the father was constrained to address Ex. J dated May 25, 1961 to a superior officer of the Posts and Telegraphs Deptt. It is contended that the arrangement entered upon for a peaceful existence not having worked out, the father was constrained to address Ex. J dated May 25, 1961 to a superior officer of the Posts and Telegraphs Deptt. And the same is an important piece of evidence requiring careful scrutiny to ascertain the real intention of the father in allowing the defendant son to reside at the suit premises. In fact the letter reveals the nature of the interest granted to the defendant, and a careful reading of the same makes it abundantly clear that it was only a bare licence granted to the defendant for the reasons stated in the said letter. It is urged that the arrangement and/or agreement as recorded in the said letter should be construed as a bare personal privilege granted to the defendant son to stay in the suit premises upon certain conditions, namely, although not required to pay rental charges therefore, he was required to pay for the repairs of the portion occupied by him and other expenses, such as taxes and electricity. Placing reliance on Ex. J it is contended that the letter shows that the original plaintiff No. 1 initially had every intention to oust the defendant from the house and it was only at the intervention of a few relatives and friends that this course of action was not finally pursued. The obligation to pay for the repairs and other expense being a mere licence fee, did not create any interest in the suit premises in favour of the defendants. ( 19 ) ON the issue No. 6, as to whether the order dated September 8, 1976, is a nullity, it is contended that there is no bar in appointing a beneficiary as a trustee under Indian Trust Act. Placing reliance on Sec. 10 of the Indian Trust Act is contended that any person who is suijuris and capable of holding property is competent to be appointed a trustee and there is, in any event, nothing on record to show that the rights and duties of the trustees conflicted with that of the beneficiaries. In this context reliance was placed on Lewin on Trust, 16th Edn. page 4 and page 421. ( 20 ) IT is next contended that under the trust deed Ex. In this context reliance was placed on Lewin on Trust, 16th Edn. page 4 and page 421. ( 20 ) IT is next contended that under the trust deed Ex. 'a' the heirs and legal representatives of the last trustee were competent to appoint trustees in writing and it is nobody's case that any such trustees had been so appointed. As such, on the death of the last trustee the Court was empowered to fill up any vacancy on an application under sections, 73 and 74 of the Trust Act. Section 73 of the Indian Trust Act does not specify as to the persons who are competent to be appointed trustees, and merely provides for vacancies to be filled up in terms of the said section. The cases relied upon are thus not applicable as it is not a case of initial lack of jurisdiction and what was really sought to be urged is that the court should not have passed the order made on the basis of the allegations in the petition and/or that the order was erroneous on the facts pleaded. The decisions relied upon by Mr. Biswas in any event relate to considerations in respect of decisions of an inferior tribunal and in that background it was held that if anything extraneous was taken into account by it, the same was a nullity. Where however the court had both nullity although the same may ultimately be found to be erroneous. In support of this proposition reliance is placed on (13) Ledgard v. Bull reported in 13 IA 134 and 135. In that case instead of filing a suit in the Court of the learned District Judge who alone had jurisdiction to entertain the proceedings the same was wrongly filed in the court of the Subordinate Judge and the court, inter alia, held this defect and/or lack of initial jurisdiction could not be cured by any subsequent transfer. The ratio of the case being that if the court had no inherent jurisdiction in the matter, no amount of acquiescence nor the fact of the defendant having submitted to jurisdiction would confer a tribunal with the jurisdiction which the court did not initially possess. Next case relied upon was (14) Hridaynath Roy v. Ram Chunder reported in AIR 1921 Cal. Next case relied upon was (14) Hridaynath Roy v. Ram Chunder reported in AIR 1921 Cal. 24 in which case the question before the Full Bench was whether the order of the District Judge was without jurisdiction and a nullity, and the court in its findings made a distinction between the existence of jurisdiction and exercise of jurisdiction, and, inter alia, held that only an erroneous exercise of jurisdiction would not render an order a nullity. Also relied upon was the decision (15) Malkanjee v. Narhari reported in 27 IA 216, wherein the court held -"a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wrongful party can only take the course presented by law for setting matters right, and if that course is not taken the decision however wrong cannot be disturbed". ( 21 ) THE three decisions cited are distinguishable and not applicable to the facts of the instant suit as in Air 1969 S. C. 823 (supra) the High Court had made an order in an originating summons matter which clearly the court had no power to do under chapter XIII of the High Court Rules and thus the same was held, inter alia, to have been passed without initial jurisdiction. The second case cited Anisminic's case (supra) is a decision of an administrative tribunal which is a quasi-judicial authority and the court was not called upon to consider the jurisdiction of a chartered High Court. The ratio of AIR 1972 S. C. 2379 (supra) on the other hand is that the High Court had no power to interfere with orders passed by the subordinate Court other than the limited powers provided in Section 115 of the Civil Procedure Code and in that context the judgment in "anisminic's" case was merely noted. It is contended that the order of 8th September, 1976 since drawn up, competed, filed, and acted upon is very much binding on the parties. The plaintiffs have been substituted as trustees in place and stead of the original plaintiffs and their names have accordingly been incorporated in the amended plaint. As such, it is not a case where the court lacked initial jurisdiction to pass an order. The plaintiffs have been substituted as trustees in place and stead of the original plaintiffs and their names have accordingly been incorporated in the amended plaint. As such, it is not a case where the court lacked initial jurisdiction to pass an order. The application was admittedly one made under sections 73 and 74 of Indian Trust Act in which application the defendant himself invited the decision of the court for the appointment of a new trustee although contending that the plaintiffs should not be so appointed. ( 22 ) IT is next contended that this court is not really required to construe the trust deed, Ex. A, and in fact it is not necessary so to do, as the only issue requiring determination is whether leave and licence had been granted by the original plaintiffs to the defendant and that they were incompetent to grant such leave and licence is not a case made out in the pleadings nor any issue has been raised thereon. The principal point for consideration herein therefore is, whether the defendant is residing in the suit premises with the leave and licence of the original plaintiffs and/or under any higher right as claimed by him. Placing reliance on section 57 of the Easement Act, 1882 it is contended that a licence means a grant from one person to another in respect of a permissive enjoyment of the property without creating any interest therein and which enjoyment would be unlawful but for the permission granted. ( 23 ) IT is submitted that in considering as to whether a licence had been granted to the defendant it is pertinent to ascertain the intention of Radheshyam Seal in permitting the defendant to reside in the suit premises under the agreement of 1956/1957 and such intention is to be gathered from surrounding circumstances. Placing reliance on (16) P. Bhaskaran and Ors. V. Indian Iron and Steel Co. Ltd. and Ors. , reported in 71 Calwn 302 it is contended that intention of the parties is the golden rule to ascertain the nature of agreement. A licence, no doubt, cannot be revoked but a bare licence is revocable on death or by revocation. Construing the contents of Ex. V. Indian Iron and Steel Co. Ltd. and Ors. , reported in 71 Calwn 302 it is contended that intention of the parties is the golden rule to ascertain the nature of agreement. A licence, no doubt, cannot be revoked but a bare licence is revocable on death or by revocation. Construing the contents of Ex. J, it is contended that in the instant case is it nothing more than a bare licence namely, a persona privilege granted to the defendant to reside in a portion of the suit premises. It is further argued that the defendant was merely permitted to stay in the portion allotted to him and it was open to the original plaintiff No. 1 to oust him therefrom at his discretion. In fact the letter shows that the original plaintiff No. 1 being displeased with the behaviour of his son, had intended to throw him out, but love and affection for the grand children prevented him from pursuing such a course of action. Nor does Ex. J show that any right in the land was transferred to the defendant which alone could have given him any higher right than a bare licence. In this context reliance was placed on (17) Board of Revenue v. Ansari, reported in AIR 1976 SC 1813 . In that case the court distinguished between a lease and a licence and held a licence did not create an interest in the property whereas a lease did. The court held, inter alia, that for the purpose of deciding whether a particular grant amounts, to a lease or a licence, it is essential to look to the substance and essence of the agreement and not to its form. ( 24 ) IT is next contended that under the Dayabhaga School of Hindu Law under which the parties are governed the son has no right of residence at all. In fact an adult son does not even have the right of maintenance. As such, the defendant's occupation of the premises without permission of the trustees became unlawful the moment leave and licence to reside therein was revoked the Exhibit Nl. For the same proposition reliance is also placed on (18) B. M. Lall by his legal representatives v. M/s. Dunlop Rubber Company, reported in AIR 1968 SC 175 . As such, the defendant's occupation of the premises without permission of the trustees became unlawful the moment leave and licence to reside therein was revoked the Exhibit Nl. For the same proposition reliance is also placed on (18) B. M. Lall by his legal representatives v. M/s. Dunlop Rubber Company, reported in AIR 1968 SC 175 . In that case construing the agreement the court held that in the light of surrounding circumstances, the deed operates as a licence and not as a tenancy as it created no interest in the land but merely gave a personal privilege to a servant to occupy the premises for the greater convenience of his work. ( 25 ) THE judgment relied upon by the Counsel for the defendant reported in AIR 1959 SC 1259-1262 (supra) is also of no assistance, as it merely laid down that the intention is to be ascertained from the facts of the case and if it found that no interest had been transferred it could not be said that the same was anything but a licence. Similarly, AIR 1953 Cal. 147 is also of no assistance. Relying on the decision P. Bhaskaran and Ors. V. The Indian Iron and Steel Co. Ltd. and Ors. reported in 71 Calwn 302 it is contended that the obligation imposed upon the defendant to pay for repairs of the house did not mean thereby that there was any transfer of an interest in land to him, and in any event the issue as to tenancy had been given up and not pressed at the time of trial. Thus on the basis of the decisions cited and applying the principles enunciated therein as laid down by the highest court of the land, the court is to look into the background and the conduct of the parties and ascertain therefrom as to what was the intention of the settlor. It is undisputed that there was the intention of the settler. It is undisputed that there was extreme bitter relationship between father and son and the father had indicated that he desired the son to leave the house immediately. In this background it is necessary to determine whether the father's intention under the arrangement and/or agreement could have been a transfer any interest in the property to the defendant? It is undisputed that there was extreme bitter relationship between father and son and the father had indicated that he desired the son to leave the house immediately. In this background it is necessary to determine whether the father's intention under the arrangement and/or agreement could have been a transfer any interest in the property to the defendant? Exhibits T, R, U, V and Ware also documentary evidence on record which show that the father was throughout aggrieved and thoroughly dissatisfied with the conduct of the defendant necessitating police complaints to be lodged by him. Placing reliance on the evidence of the plaintiff No. 1 in questions 125, 127, 140 to 143, 156 and 200, it is contended that the defendant was permitted to occupy a separate portion of the suit premises with leave and licence remained uncontradicted as there is no cross-examination thereon. Reliance was placed on Qs. 91 to 96 of the defendant to show that he was not claiming any right in the suit property except as a beneficiary. The defendant's wife in question 37, 45 and 47 and also the defendant in question 327 admitted that he was given leave and licence to stay in the premises. On the totality of the evidence therefore, there is evidence that the permission given was a bare licence and nothing further. The contention that the defendant had a right to reside in the suit premises by reasons of his status as a "son" is not borne out by pleadings nor any issue raised thereon, and submissions from the Bar on this aspect of the matter should not be considered and in any event not tenable in fact and/or in law. The judgment cited on this aspect has no application as the same were decided mainly on the interpretation of particular statutes. The right of the wife to reside in a matrimonial home is a right conferred on her because of consortium and it is a special right conferred to the wife under the statute. Reliance was placed on Bromley's Family Law, 4th Edn. 386 where the learned author had considered that the right of a wife was to reside in the matrimonial home alone and did not affect any other properties. 1972 (2)All. Reliance was placed on Bromley's Family Law, 4th Edn. 386 where the learned author had considered that the right of a wife was to reside in the matrimonial home alone and did not affect any other properties. 1972 (2)All. E. R. 70 (supra) cited is also distinguishable as in that case there was a licence given by a contract to live in the particular premises for a particular term and in that context the plea of the defendant that she was not liable to be evicted therefrom was upheld. It is nobody's case in the instant proceeding either in the pleadings or from the witness box that the defendant was given a right of residence for life or for a particular term. 1948 (2) All ER 133 cited is also not applicable. In that case there was an oral undertaking to allow the defendant to reside in the premises for her life time and the concept of trust was brought in and the court came to the conclusion that equity should lean in favour of the agreement. The submissions made that the defendant had acquired beneficial interest in the property, cannot also be sustained. None of the sections of the Indian Trust Act relied upon, are relevant for the purpose of showing that if a licence is created by a trustee the same is not revocable. It was lastly contended that the question of family arrangement also should not be permitted to be agitated as family arrangement is a question of fact which is required to be pleaded. Nor is there any suggestion to the plaintiffs that there was a family arrangement. It is contended that agreement and family arrangement are not one and the same thing and there is no issue on the point of family arrangement and arguments on this basis came as a complete surprise. On revocation of licence it is contended, that it mattered not if the letter had described the original plaintiffs as the owners of the suit premises and in any event filing of a suit was an act of revocation and/or termination of the permission granted. On the aspect as to whether the plaintiffs are entitled to be substituted, it is contended that the order of Court having been acted upon and leave having been granted to the plaintiffs to continue the suit they are proper parties to the proceedings. On the aspect as to whether the plaintiffs are entitled to be substituted, it is contended that the order of Court having been acted upon and leave having been granted to the plaintiffs to continue the suit they are proper parties to the proceedings. ( 26 ) IN reply, Mr. Biswas learned Counsel for the defendant contended that all necessary facts had been pleaded in the plaint and it cannot be said that a case of an agreement had not been made out in the pleadings. Placing reliance on Order 6 rule 2 of the Civil Procedure Code it is contended that every pleading must state facts and not law. Order 8 rule 5 thereof requires a specific denial to be made of the facts pleaded. This being the law, it has been sufficiently pleaded that thee was an agreement in 1956 although alternative pleadings which are permissible in law has also been raised. It is contended the fact of an agreement having been pleaded it is sufficient for the court to infer therefrom that the said agreement was by way of family arrangement the legal term given to such an arrangement. It is an admitted case of both the parties that previus disputes between the members of the family had resulted in a settlement, which had been stated in the pleadings. Relying on Halsbury Vol. 15 Art. 1 it is contended it is not enough for the defendant to specifically deny that any leave and licence was granted to him to and/or the arrangement and to ascertain therefrom as to what was the nature of the agreement, and if found that occupation was lawful, under an agreement the question of leave and licence could not arise. Relying on the decision (19) Srinivas v. Ramnivas, reported in AIR 1951 SC 177 it is contended that it is open to the defendant to make an alternative case on the evidence adduced, and the basic principle is that the parties must have an opportunity to meet the case at the trial and should not be taken by surprise. In support of the said proposition reliance is also placed on (20) Bibi Siddique Fatema v. Syed Md. In support of the said proposition reliance is also placed on (20) Bibi Siddique Fatema v. Syed Md. Hassan, reported in AIR 1978 SC 1373, It is contended that the words "family arrangement" not being used in the pleadings is of no consequence as on the authority of the decisions cited it is necessary only for the material facts to be pleaded, so that the parties are not taken by surprise. The case cited by Counsel for the plaintiffs on this aspect have no application as therein the basic facts required to the stated were not pleased, resulting in the parties being taken by surprise at the trial as to the facts. ( 27 ) ON a careful consideration of the respective stands of the parties I am of the view that the only aspect requiring consideration is firstly, whether the defendant is liable to be ejected from the suit premises on the ground of revocation of leave and licence alleged to have been granted to him by the then trustees namely the original plaintiffs as pleaded, and secondly, to ascertain the scope and effect of the order dated September 8, 1976 which is alleged to be void ab initio and a nullity. It having been conceded by Mr. Bachawat learned counsel for the plaintiffs that the plaintiffs as trustees are pursuing the original cause of action on the strength of Ex. "a" and on the basis of the original plaint and on no other grounds this court is not required to determine the effect of any other subsequent document. Nor is it necessary to construe the provisions of the trust dead Ex. "a" which is left open for construction in other proceedings. ( 28 ) EXTENSIVE and elaborate arguments have been made by Mr. Biswas learned Counsel for the defendants as to his client's right to reside in the suit premises on different grounds, all of which have been noted above. The range of controversies raised by him cover a much wider field than that necessary to determine the short point involved and/or to defendant has right to reside in the suit premises under the admitted agreement and/or arrangement of 1957 as recorded in Ex. J. and which has been termed as a "family arrangement" acted upon by all parties, has considerable force and merits consideration. J. and which has been termed as a "family arrangement" acted upon by all parties, has considerable force and merits consideration. It is convenient to set out hereunder the said letter dated May 25, 1961 for appreciation of its true scope and effect - sir, under painful compulsion I beg leave to place before you the following few lines against my second son, Subal Charan Seal, an employees under you for favour of taking such action as you deem proper. Since 1955 he has been frequently harassing, insulting and even assaulting me, his mother and the two brothers under some false pretext on flimsy grounds. To maintain the peace and order in the family, however, I allotted the entire topmost floor of my house, to enable him to live with his wife and children quite independently and altogether separately from us. Hardly a year passed under this fresh arrangements than he again adopted his fighting attitude and did not hesitate even to assault his pretty old and invalid parents and not to speak of his brothers. He also damaged and removed my properties. Under the circumstances I had to lodge complaints against him more than once with the Jorasanko Police Station and the Deputy Commissioner of Police, Anti-rowdy who caused warnings to him. By December, 1956 his conduct and behaviour became so very intolerable that I made up my mind to oust him from my house. But my live and affection for his innocent children stood in the way of doing so and on the intervention of my other two sons and a few relatives, I permitted him to stay in the rear portion of my house on the clear understanding that he should maintain peace and order, carry on annual repairing of the portion at his own expense etc. etc. The back portion of the house is completely separated from the front portion having rooms, upstairs and a court-yard on the ground floor, separate water tap, separate vat, separate latrine, separate stairs and even a separate entrance from the outside. It can easily fetch a monthly rent of at least Rs. 80/- if let out to an outsider. But Subal Charan was and is not required to pay any rental charges for the same. Far from carrying on annual repairing he has been willfully damaging the portion occupied by him for reasons best known to him. It can easily fetch a monthly rent of at least Rs. 80/- if let out to an outsider. But Subal Charan was and is not required to pay any rental charges for the same. Far from carrying on annual repairing he has been willfully damaging the portion occupied by him for reasons best known to him. On account of my serious illness for over four months I am still confined to bed. Taking advantage of my physical weakness he has now made it almost a daily affair in doing mischief by hammering the partition doors and threatening to assault me and his mother by breaking open the same. Recently he entered my portion of the house from the front door and abuse his mother. On the 14th instant he assaulted on the street one of my grand sons (daughter's sons) with blows and for which a diary was made in the Jorasanko Police Station. He is now a days disturbing with the water supply, the connection comes from his portion. I am 85 years old at present and my wife is 75 years and both of us are invalid. Subal's turbulent and rowdy conduct towards us at this ripe old age is simply hastening our death. In conclusion I most humbly pray to you to take such action in the matter as would afford us the opportunity of passing these numbered days of ours in peace and happiness. For this act of kindness, I shall always remain grateful to you. Yours faithfully, radheshyam Seal. ( 29 ) FROM the above documentary evidence on record there appears to be a bonafide and genuine settlement between father and son in 1956/1957 the effect whereof was to give exclusive possession of the rear portion of the suit premises to the defendant for his own use and for that of his family members, with a view to separate them from the rest of the family, and this cannot be said to be a personal privilege granted to the defendant alone. Following the principles enunciated in the decisions cited, it is necessary for the court to consider the salient feature of Ex. J. On the basis whereof possession of the rear portion was allotted for use and occupation of the defendant and his family members. Following the principles enunciated in the decisions cited, it is necessary for the court to consider the salient feature of Ex. J. On the basis whereof possession of the rear portion was allotted for use and occupation of the defendant and his family members. It is clearly and categorically expressed in the aforesaid letter that "to maintain peace and order in the family" the rear portion of the premises was allotted to the defendant to enable him to live independently therein with his wife and children. It also appears therefrom that "the love and affection" the grandfather bore "the innocent children" of the defendant stood in the way of the original plaintiff No. 1 from driving out his son in December, 1956 from the suit premises, which he had intended to do prior to the settlement being arrived at, and the settlement was thus not in the interest of the defendant alone but to the interest of his children also, and they were intended to be benefited thereby. This can be the only reason why the original plaintiff No. 1 was compelled to appeal to his son's employer for intervention in the matter, as he must have been aware that under the agreement and/or arrangement entered upon, he could not take any steps for ousting the defendant and any action for ejectment was clearly not contemplated. It further appears that the defendant and his family members were allotted the rear portion of the suit premises on the clear understanding that the defendant would be responsible for the "annual repairing of the portion at his expense etc. etc. " It is apparent further that the said portion allotted to the defendant and his family members was a completely separate and independent unit having a separate entrance, separate latrine, water tap etc. and was to be used exclusively by the defendant and his family members. This is to my mind is the substance and essence of the agreement which was in the nature of a family arrangement arrived at in consideration of the love and affection, the settler bore his grand children and was intended to put an end to all disputes which hitherto before prevailed between the defendant on the one hand and his parents and brothers on the other. By the agreement in fact certain obligations were thrust upon the defendant (although no rent was required to be paid) cutting to the root of the matter and destroying a case of bare personal privilege. In this written statement the defendant alleged he was a "tenant" of the suit premises under an agreement which case of tenancy was subsequently not pressed, but it is an important factor that the agreement entered upon between himself and the original plaintiff No. 1 in 1956-57 was never given to go by nor departed from, and in fact the case of agreement was fully corroborated by the evidence of the plaintiff No. 1 as also the defendant. As such, any misdescription of the right under which he claimed to be entitled to reside at the suit premises cannot be of much consequence and cannot stand in the way of a court of law, particularly when all the parties are before the Court, in coming to a finding that the defendant was in possession under a contractual and/or equitable right short of a tenancy and which agreement may be apply described as a "family arrangement". In fact, the agreement is relied upon by both parties and it is for the court to ascertain the true scope and effect of such an agreement, namely, as to whether a bare personal privilege was granted thereby or whether any higher rights were acquired thereunder entitling the defendant to reside at the said premises ? The parents of the defendant who were the trustees, are not before the court to dispose as to their intention at the relevant time although they took steps to institute the present proceedings, almost five years after entering upon such an agreement. This question necessarily has to be decided on the basis of oral and documentary evidence adduced, as also the surrounding circumstances at the relevant time. The evidence of plaintiff No. 1 that the defendant was permitted to occupy a portion of the suit premises on the explicit understanding that he would vacate when called upon to do so and that he was liable to be thrown out if he did not maintain peace in the household, is not something which I am able to read into Ex. "j" and the said case is not corroborated by the said Exhibit. "j" and the said case is not corroborated by the said Exhibit. On the other hand I read into the terms of arrangement as recorded therein in the hands of the original plaintiff No. 1 that in consideration of the love and affection he bore his grand children, he entered upon an arrangement which I hold and accept as a family arrangement separating the defendant and his family members from the rest of the family, and putting him in exclusive occupation of a separate and independent portion of the suit premises so that no further quarrels ensued. I also find from the circumstances and the conduct of the parties that there was no personal privilege granted to the defendant and in fact he was obliged to pay for the repairs of the portion in his occupation and was also liable for further expenses as would be apparent by the use of the words, "etc. etc. " which words I hold were not an unnecessary appendage, and in fact corroborated the evidence of the defendant who deposed that under the agreement he was liable to pay for 1/3rd of the taxes and the electricity bills of the suit premises, and there is no reason for this court not to accept the terms of the agreement as put forward by him. I am in fact inclined to accept the same as most probable in the facts of the case. As such, I hold that the arrangement entered upon gave the defendant a contractual and/or equitable right short of a tenancy entitling him along with his family members to reside in the portion in his occupation and he is not liable to be ejected therefrom. The other aspect of the matter, the arrangement entered upon being in the nature of a family arrangement, in the interest of social justice, and in the interest of the innocent grand children, the Court is inclined to support the same, particularly as thereby a genuine attempt was made to put an end to the then bitter relationship between the parties, which had even led to criminal complaints being lodged by one against the other. In this background, in an attempt to bring peace and harmony to the household, the father Radheshyam Seal the original plaintiff No. 1 of his own free will entered upon an arrangement, with a view to resolving the disputes with the family and the same must be held final and binding on all parties, and the original plaintiffs are thus estopped and/or precluded from resiling therefrom. This arrangement which met with the approval of the original trustees, namely exclusive possession of a portion of the suit premises given to the defendant with obligations upon him to repair the same, etc. , is also binding on the substituted plaintiffs, who admittedly seek to pursue the original cause of action and are not seeking to agitate any independent right or new cause of action. In the facts of the case I am thus unable to hold that the concept of leave and licence as urged by the plaintiffs is applicable. ( 30 ) IT is settled law that it is the substance and not the form which is required to be looked into, and there being no controversy between the parties that such an agreement as recorded in Ex. J, was entered upon in 1956 or early in 1957 whereunder the father Radheshyam Seal the original trustee gave the defendant exclusive possession of a portion of the suit premises on certain terms and conditions as recorded in the said letter, I am unable to hold that there was any deviation from the facts pleaded, although the right of the defendant thereunder was incorrectly described as a tenancy in the pleadings. Counsel for the defendant realising the situation did not press the case on the basis of tenancy, but this did not prevent him from urging that the defendant along with his family members was not liable to be ejected from the suit premises, and that there was no question of a bare licence as contended on behalf of the plaintiffs. ( 31 ) ON the other aspect of the matter as to whether the order of September 8, 1976 was void ab initio as alleged in paragraph 9 of the additional written statement, Counsel for the defendant extended his case in argument and urged beyond the issue raised that the same was void and a nullity on the grounds that this court did not have initial jurisdiction to hear the matter. To my mind although Issue No. 6 had been raised from a limited point of view, the point of initial lack of jurisdiction if brought to the notice of the court, cognisance could be taken of the same and the court could not overlook the matter on a mere technicality of pleadings and/or non-raising of a broader issue. It appears however, that section 74 of the Indian Trust Act contemplates an application to be made to the principal Court of Civil Jurisdiction and the subject matter of the suit is admittedly valued over Rs. 50,000/- as would appear from the trust deed of 1937 annexed to the petition for appointment of a trustee, where in the value of the suit premises in 1937 is stated to be Rs. 15,000/ -. Taking judicial notice of such a fact I hold that this court has pecuniary jurisdiction to entertain the said application, as the subject matter of the suit exceeded Rs. 50,000/- in value. To my mind jurisdiction connotes the extent of the authority of a court to administer justice not only with reference to the subject matter of the proceedings but also to the local and pecuniary limits of its jurisdiction. The subject matter of the application under section 74 of the Trust Act was patently a proceeding arising out of trusts and endowments, which the High Court being a principal Court of Civil Jurisdiction was not incompetent to determine by deletion of Item No. 9 of the first schedule of the City Civil and Sessions Court Act of 1953 under the Amendment Act of 1959. By such deletion, the City Civil Court's jurisdiction to entertain such proceeding was extended, but this did not take away the initial jurisdiction of the High Court to entertain such application where the subject matter of the proceedings was within its pecuniary jurisdiction and it had initial jurisdiction to entertain such an application. The other contention raised that on the face of the allegations in the petition the court should not have passed the order, and there was no scope therefore, has not merit for following the ratio of the decisions cited that I hold if the court had initial jurisdiction, it mattered not that an erroneous decision was given, even if held to be so. Till the said order dated September 8, 1976 is vacated in an independent proceeding under the Indian Trust Act, 1882 the same is operative and binding on the parties and cannot be ignored, nor challenged collaterally in a different proceeding namely in the instant suit for ejectment of the defendant. As such, the contentions of the defendant on the issue of jurisdiction is rejected. In the circumstances the order of September 8, 1976 being a valid and competent order, acted upon by amendment of the plaint, the substituted plaintiffs are entitled to proceed with the suit. For the reasons stated above the issue raised are answered as follows: -" (1) No; (2) Not as a tenant but under an agreement and/or family arrangement entered upon which gave the defendant a contractual and/or equitable right, short of a tenancy to reside therein; (3) Not required to be answered and is kept open, (4) Not required to be answered, (5) No; they are entitled to proceed with the suit as substituted plaintiffs; (6) No; (7) Not pressed; (8) The plaintiffs are not entitled to a decree for eviction of the defendant, and the suit is accordingly dismissed with costs. Suit dismissed.