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2002 DIGILAW 416 (CAL)

Subrata Coomar v. Pradeep Coomar

2002-06-28

PROVANDU NARAYAN SINHA, SAMARESH BANERJEA

body2002
JUDGMENT Sinha, J. : This is an appeal preferred by the appellant challenging the judgment and order dated 23.5.2001 passed by the Ld. Trial Judge in G.A. No. 3113 of 2000 arising out of A.T.A. NO.3 of 2000. 2. The appellant's case is that, he filed an application before the learned Court below assailing ex-parte order dated 8.3.2000 obtained by the respondent on an application filed under Sections 73 and 74 of the Indian Trusts Act (hereinafter referred to as the Act), praying for appointment of a new Trustee. It was alleged by the appellant/petitioner in the said petition that Pradeep Coomar did not implead the applicant or other persons interested in the trust property and without serving notice on them obtained the order dated 8.3.2000 which was subsequently corrected by the order dated 7.4.2000 whereby his wife Smt. Basavadatta Coomar was appointed as trustee of the alleged trust. 3. It has been contended by the appellant that in the application filed under Sections 73 and 74 of the Act the respondent Pradeep Coomar averred that Smt. Monmohini Coomar executed a deep of trust on 9th June, 1966 whereby she trusted several movable and immovable properties into the trust and appointed herself a sole trustee and the said trust was created for the maintenance of education, residence of Pradeep Coomar and it was declared in the said deed that henceforth the said trust will be known as “Pradeep Coomar Trust”. 4. The trust deed provides that upon attaining majority Pradeep Coomar will have power as beneficiary to act jointly with the trustee and if he gets children he will act as trustee for the children as beneficiaries. Smt. Monmohini Coomar had three sons and two daughters namely Samarendra Coomar, Sudhirindra Coomar, Pradeep Coomar, Smt. Sandharani Ghosh and Smt. Subhra Mullick. In order to defraud other heirs and successors of Monmohini Coomar, Pradeep Coomar brought into existence the fraudulant Deed of Trust. Smt. Monmohini Coomar did not execute the alleged trust deed and she was illiterate and she could somehow write her name in English. Pradeep Coomar disclosed the existence of the said Deed of Trust only after death of father Binoy Pada Coomar and mother Monmohini Coomar. 5. Smt. Monmohini Coomar did not execute the alleged trust deed and she was illiterate and she could somehow write her name in English. Pradeep Coomar disclosed the existence of the said Deed of Trust only after death of father Binoy Pada Coomar and mother Monmohini Coomar. 5. Samarendra Coomar, father of the present appellant filed a title suit in Sasaram Court in Bihar challenging the said Deed of Trust praying for declaration that Deed of Trust dated 9th June, 1966 alleged to have been executed by Smt. Monmohini Coomar is wrong, illegal, void, inoperative, nullity and is not binding against the plaintiff. After death of Samarendra Coomar the appellant was substituted in the suit and is proceeding with the suit. In the said suit an order of injunction was passed restraining the parties from transferring, encumbering or changing the nature and character of the properties which also included the alleged trust properties and the said injunction order was affirmed by the Patna High Court. Suppressing the aforesaid facts the respondent Pradeep Coomar filed application seeking appointment of his wife Smt. Basavadatta Coomar as trustee alleging that there was no trustee since death of last trustee Monmohini Coomar. The alleged trust is a private trust and vesting of trust property in the ultimate beneficiary was delayed beyond the prescribed statutory period, the purported trust offended the rule against perpetuity and therefore, not a valid trust and void ab initio. The trust properties have devolved upon heirs of Monmohini Coomar on her dyeing intestate in 1984. After obtaining the order from this Court Pradeep Coomar filed list of documents in the title suit in Sasaram Court annexing order of the Court below dated 8.3.2000 and 7.4.2000. On 25.7.2000 he was informed by learned Advocate of Sasaram Court about the list of documents filed by Pradeep Coomar in Sasaram Court. Being Seriously prejudiced by the orders dated 8.3.2000 and 7.4.2000 the petitioner filed application for recalling/setting aside the ex parte order dated 8.3.2000 and 7.4.2000 passed in A.T.A. No.3 of 2000. 6. The learned Judge by the impugned order dated 23.5.2001 rejected the application filed by the present appellant Subrata Coomar and hence this appeal. 7. Learned Senior Advocate Mr. Being Seriously prejudiced by the orders dated 8.3.2000 and 7.4.2000 the petitioner filed application for recalling/setting aside the ex parte order dated 8.3.2000 and 7.4.2000 passed in A.T.A. No.3 of 2000. 6. The learned Judge by the impugned order dated 23.5.2001 rejected the application filed by the present appellant Subrata Coomar and hence this appeal. 7. Learned Senior Advocate Mr. P.K. Chatterjee appearing for the appellant contended that the appellant was a necessary party to the application filed under Sections 73 and 74 of the Act because, since the death of the settlor and trustee Monmohini Coomar on 10.2.84 the trust had no trustee and there was vacancy in the office of the trust. The respondent Pradeep Coomar was the youngest son of the settlor and was beneficiary but he also claimed to have acted as trustee after the d8ath of first trustee as it was submitted by Pradeep Coomar in an Application in the Supreme Court in S.L.P. (Civil) No. 7405 of 1983 by affirming affidavit on 27.4.84. In the application under Sections 73 and 74 of the Act no one was impleaded as respondent and no notice was served upon the other heirs and legal representatives of Monmohini Coomar. Section 74 cannot be invoked unless appointment of a new trustee under Section 73 is impracticable. In other words the party seeking appointment of new trustee is to exhaust Section 73. Pradeep Coomar did not approach the heirs and legal representatives of the settlor for appointing a new trustee. But in his application he mentioned with ulterior motive that they were unwilling to become trustee. From the scheme of Sections 73 and 74 it is clear that the heirs and legal representatives of the settlor are necessary parties. As no notice was served upon the heirs and legal representatives of the settlor the learned Trial Judge had no opportunity to test the averments made by Pradeep Coomar regarding unwillingness of the other sons and daughters of Monmohini Coomar to act as new trustee. In order to come under Section 74, the averment must show that there was a vacancy and it was not permissible or practicable to appoint a new trustee under Section 73 of the Act. From the order of the learned Trial Judge dated 8.3.2000 it becomes clear that the learned Judge did not consider these points. In order to come under Section 74, the averment must show that there was a vacancy and it was not permissible or practicable to appoint a new trustee under Section 73 of the Act. From the order of the learned Trial Judge dated 8.3.2000 it becomes clear that the learned Judge did not consider these points. Hence, the appellant is a necessary party and he and other heirs should have been given notice and heard by the learned Court below on the validity of the trust, question of existence of vacancy and impracticability of appointing new trustee under Section 73 and selection of new trustee under Section 74 of the Act. The suit filed in the Court of subordinate Judge of Sasaram is still pending in which the validity of the trust has been challenged and the learned Civil Judge of Sasaram Court has passed order directing the parties to maintain status quo of the properties which includes the trust properties also. By obtaining the ex parte order appointing his wife as a trustee the respondent Pradeep Coomar will now try to sellout valuable. trust properties through his wife as trustee. The learned Trial Judge did not consider the question of legality and validity of the trust and the question of vacancy in the office of the trustee and as such the ex parte order should be recalled and set aside and the appellant should be permitted to be heard. 8. On the other hand, learned Senior Advocate Shree Jayanta Mitra appearing for the respondent Pradeep Coomar submitted that there was no illegality in the impugned order. Monmohini Coomar, mother of the parties was not an illiterate lady and she was running business and she had sufficient maturity of understanding to look after her properties. She created or executed the trust deed on 9.6.1966 for the benefit of the Pradeep Coomar and declared in the said trust deed that it will be known as "Pradeep Coomar Trust". When the settlor executed that Deed of Trust, Pradeep Coomar was a minor and a trust was created for the benefit of Pradeep Coomar and he was the beneficiary and it was further indicated in the deed that if he gets children the said children would be beneficiary and Pradeep Coomar would act as a trustee. When the settlor executed that Deed of Trust, Pradeep Coomar was a minor and a trust was created for the benefit of Pradeep Coomar and he was the beneficiary and it was further indicated in the deed that if he gets children the said children would be beneficiary and Pradeep Coomar would act as a trustee. In other words, the trust in the name of Pradeep Coomar had been made for the benefit of Pradeep Coomar alone. The plain reading of the trust clearly shows that there was no other beneficiary in the trust except Pradeep Coomar and on attaining majority he shall have full powers as beneficiary to act jointly with the trustee and watch the best interest of the trust as beneficiary and if he gets children to act as trustee for them as beneficiaries. The learned Judge rightly exercising jurisdiction under Sections 73 and 74 of the Act appointed wife of Pradeep Coomar as trustee on his prayer. The appellant has no interest at all in the matter and the allegations made by him in respect of validity and sufficiently of the trust has no connection at all in respect of provisions under Sections 73 and 74 of the Act. As the appellant was not a necessary party no notice was required to be served upon him. 9. After hearing the submissions of the learned Counsels of the respective parties and going through the materials-on-record including the impugned order dated 23.5.2001 assailed in this appeal. We are of the view that the arguments canvassed before us by Mr. Chatterjee on behalf of the appellant are not acceptable. 10. The recitals of the Trust Deed executed by Monmohini Coomar on 9th June, are very important. Clause 2 of the said Trust Deed reveals that the said trust henceforth will be known as “Pradeep Coomar Trust”. Clause 3 of the deed reveals that the settlor appointed herself as the first trustee so long she is alive and thereafter her husband Binoy Pada Coomar will be the trustee and the first trustee reserves the right to nominate any other trustee in case the occasion so arises and Pradeep Coomar will be the beneficiary and thereafter his sons will be beneficiary. Clause 16 of this Trust Deed reveals that Pradeep Coomar on attaining majority shall have full powers as beneficiary to act jointly with the trustee and watch best interest of the trust as beneficiary and if he gets children to act as trustee for them as the beneficiaries. We lay emphasis on the words "if he gets children" and we also lay emphasis on the words “Pradeep Coomar on attaining majority shall have full powers as beneficiary to act jointly with the trustee". These words indicate that Pradeep Coomar was given the power to act jointly with the trustee and if he gets children to act as trustee for their beneficiaries. If he does not get children as the sole beneficiary Pradeep Coomar was entitled to put an end to the said trust. There was no indication in the Trust Deed for any other heir or legal representative of Monmohini Coomar to act as trustee. 11. On a plain reading of the Trust Deed we find that there was no other beneficiary to the Trust other than Pradeep Coomar and his Children if he gets Children. It is admitted that, Pradeep Coomar has no children either biological or adopted. There was no whisper in the trust deed indicating name of the appellant or other heirs of Monmohini Coomar and being so the appellant was not entitled to take part in the proceeding started on the basis of application under Sections 73 and 74 of the Act filed by Pradeep Coomar seeking intervention of Court to appoint a trustee. In this connection we rely upon decision of Delhi High Court in the case of (1) Smt. Shanti Devi v. State reported in AIR 1982 Delhi 453. In this decision distinction between private trust and public charitable trust was made. In this reported case Shanti Devi herself as a legal representative and heir of the settlor made application to Court for opinion and direction to act as a trustee but her name was not mentioned in the Trust Deed nor the settlor ever mentioned in the deed to have any such legal heir. It was held that the claim of Shanti Devi has no foundation. It was also decided that the assential difference between a private and public trust is that in the former the beneficiaries are defined and ascertained individuals. It was held that the claim of Shanti Devi has no foundation. It was also decided that the assential difference between a private and public trust is that in the former the beneficiaries are defined and ascertained individuals. In the instant matter, there was no whisper in the Trust Deed created by Monmohini Coomar showing name of the appellant or other persons as legal representatives or heirs. Therefore, the claim of the appellant has no foundation and the appellant is not at all a necessary party in the proceeding which arose out of the application under Sections 73 and 74 of the Act filed by the respondent. 12. Section 73 of the Act deals with procedure for appointment of new trustees in non-contentious matters on certain circumstances. Section 73 deals with mainly two matters viz. when a new trustee may be appointed and who are competent to appoint new trustees. It is confined to proceeding by a beneficiary by virtue of petition praying for appointment of new trustees. A Trust is extinguished when its purpose is completely fulfilled. Here the purpose of the trust as it appears from the recitals of the Trust and from the intention of settlor as can be gathered from the trust was the maintenance, upbringing and proper education of Pradeep Coomar. Pradeep Coomar on attaining majority after his education could have terminated the trust. There would have been no illegality or irregularity, if Pradeep Coomar did not pray for appointment of new trustees under Sections 73 and 74 of the Act. He could have put an end to the trust as purpose of the trust was fulfilled. 13. Section 10 of the Act describes who may be trustees. The argument that after death of Monmohini Coomar on 10.2.84 there was no trustee is not acceptable to us as it is clear that Pradeep Coomar being the sole beneficiary was acting as a trustee. Pradeep Coomar has affirmed affidavit also in the Supreme Court in this respect in connection with S.L.P. No. 7405 of 1983. Of course, a beneficiary should not be sole trustee but a beneficiary can function as a co-trustee. In the instant case there was no need of it as purpose of the trust was completed and fulfilled when Pradeep Coomar became major completing education and the Trust was for the upbringing, maintenance and education of Pradeep Coomar. 14. Of course, a beneficiary should not be sole trustee but a beneficiary can function as a co-trustee. In the instant case there was no need of it as purpose of the trust was completed and fulfilled when Pradeep Coomar became major completing education and the Trust was for the upbringing, maintenance and education of Pradeep Coomar. 14. The argument that Monmohini Coomar was illiterate and could somehow write her name only is not acceptable to us. From the recitals of the Trust Deed we find that she was wife of Benoy Pada Coomar and by occupation business and land owner. The deed bears signature of Monmohini Coomar and manner and style of writing English by her in signing her name indicates that she was fluent in English and was well acquainted with english. It was also argued by Mr. Chatterjee before us on behalf of the appellant that the deed was created by exercising fraud and misrepresentation upon the settlor by the respondent. We are unable to agree with his argument as it is difficult to believe that the respondent Pradeep Coomar who was hardly 20 years of age when th,e trust deed was created was so curning, shrewd or clever so as to create influence on his mother to dictate or force her to execute such a deed. 15. We find that the father of the appellant has already filed Title Suit No. 80 of 1987 in the Court of 4th Sub. Judge at Sasaram in Bihar praying for declaration that the deed of trust dated 9th June, 1966 alleged to have been executed by Monmohini Coomar is wrong, illegal, void, inoperative, nullity and is not binding against the original plaintiff and the present plaintiff. The appellant in the suit filed by him in the Court of Subordinate Judge of Sasaram is at liberty to prove his case on the basis of oral and documentary evidence. 16. In this connection the findings of the Supreme Court in the Civil Appeal No. 5879 of 1983 is pertinent. Monmohini Coomar preferred the civil appeal before the Supreme Court challenging the order of this High Court passed under Section 115 of C.P.C. That matter arose out of an arbitration agreement between Benoy Pada Coomar and Monmohini Coomar and certain disputes were referred to the arbitration. Monmohini Coomar preferred the civil appeal before the Supreme Court challenging the order of this High Court passed under Section 115 of C.P.C. That matter arose out of an arbitration agreement between Benoy Pada Coomar and Monmohini Coomar and certain disputes were referred to the arbitration. The arbitrator gave his award dated 20.6.57 with regard to immovable property situated at 4, Rowdon Street, Calcutta - 16 and Monmohini Coomar was declared to be the sole and absolute owner of the property. This property is also included in the Trust Deed executed by Monmohini Coomar on 9.6.1966 creating “Pradeep Coomar Trust”. The award also included business interest of Monmohini Coomar in the three firms of their partnership business. The Supreme Court in the aforesaid civil appeal held that, “Form the narration of fact it is clear that none of the children, admittedly had any interest in the property which was subject matter of the Arbitration award at least at the time when their parents were living. The case of the plaintiff was that property No.4, Rowdon Street was the exclusive property of his father. Whether it was exclusive property of the father or he was a mere benamdar would not really be relevant because it is he who was a party to the arbitration agreement and thereafter he not only accepted the decree which was passed making the award the rule of the Court but also voluntarily executed the two release deeds in favour of his wife. In law, therefore, whether Benoy Pada Coomar was the sole owner or not, the fact remains that with the decree having been passed and the release deeds having been executed, the title in the said properties thereafter vested in Monmohini Coomar. At no point of time prior to his death Benoy Pada Coomar challenged either the award or the decree or the release deeds. As on the date of his death in 1978, the said properties could not be recorded as forming part of the estate of Benoy Pada Coomar”. 17. The Supreme Court also observed that, “This is an unfortunate dispute pertaining to property belonging to the parents of the litigating parties. It is not as if there is any dearth of money in the family but it is the greed for more money that has soured the relationship between the brothers and the sister, and earlier between the son and the mother”. It is not as if there is any dearth of money in the family but it is the greed for more money that has soured the relationship between the brothers and the sister, and earlier between the son and the mother”. This observation of the Supreme Court along with the recitals of the Trust Deed makes it clear that Monmohini Coomar in order to protect the interest of her properties and for future protection of her youngest son executed the said Trust Deed for the maintenance, upbringing and proper education of her youngest son, Pradeep Coomar. 18. Sri Chatterjee, learned Advocate for the appellant also contended that the trust was ex facie an unnatural transfer as the settlor has purported to give all her properties by the trust only to her youngest son to the exclusion of all her other heirs and legal representatives without any apparent reason for doing the same. We are unable to accept the contention of Mr. Chatterjee. If a person owning some property transfers the same to a particular son or other sons in exclusion of other sons and daughters, it cannot be regarded as sufficient to generate suspicion or invalidity of the deed. It is the intention of testator or settlor that his property he shall give to whomsoever he likes. The law is now well settled that a settlor or testator has under the law freedom to give his property to whomsoever he likes. When the deed was duly executed by the testator or settlor and testator/settlor by the said deed gave whole of his estate to some of the sons in exclusion of other sons and daughters this itself cannot be regarded as sufficient to generate suspicion. In this connection we rely upon the decisions in the cases of (2) Smt. Chinmoyee Saha v. Debendralal Saha reported in AIR 1985 Calcutta 349 and (3) P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar & Ors. reported in AIR 1995 SC 1852 . The principle of law enuntiated through those rulings though were concerning execution of will, is applicable to Deed of Gift, Trust Deed, Family Settlement Deed etc. executed by testator or settlor. We have already observed that one of the sons filed litigation against mother Monmohini Coomar and her husband and other sons tried to put the mother into trouble with intention to grab properties out of greed. executed by testator or settlor. We have already observed that one of the sons filed litigation against mother Monmohini Coomar and her husband and other sons tried to put the mother into trouble with intention to grab properties out of greed. The mother being anxious over the future prospect of her youngest son executed the said Trust Deed. 19. It is clear from the contents of the deed that mother Monmohini Coomar had the sole intention to create the said trust deed for the maintenance, upbringing and proper education of her youngest son and the youngest son Pradeep Coomar was the sole beneficiary and for this reason the trust is known as “Pradeep Coomar Trust”. Pradeep Coomar could have put an end to the trust as he did not get any children. There was no need for Pradeep Coomar to seek intervention of Court to appoint a new trustee under Sections 73 and 74 of the Trust Act. We are of the view that the trust was extinguished as its purpose was over. The respondent Pradeep Coomar was wrongly advised to seek intervention of Court to appoint a new trustee under Sections 73 and 74 Act. We are also of the view that the learned Court below did not consider that purpose of the trust was over and there was no need of appointing wife of Pradeep Coomar as a trustee. The appellant is not at all a necessary party to be included in the proceeding under Sections 73 and 74 of the Act started on the basis of application of Pradeep Coomar. 20. Learned Advocate for the appellant also argued that the trust was a nullity and is bound to fail in view of provisions of Sections 13 and 14 of the Transfer of Property Act as Trust was created in favour of unborn sons of Pradeep Coomar as sons of Pradeep Coomar were not in existence on the date of creation of the trust. Learned Advocate for the respondent contended that rule of perpetuity in view of Sections 13 and 14 of the Transfer of Property Act is not applicable in this case. The trust was exclusively for Pradeep Coomar and he was entitled to put an end to the trust. Learned Advocate for the respondent contended that rule of perpetuity in view of Sections 13 and 14 of the Transfer of Property Act is not applicable in this case. The trust was exclusively for Pradeep Coomar and he was entitled to put an end to the trust. We are of the view that the rules of perpetuity as embodied in Sections 13 and 14 of the Transfer of Property Act are not applicable in the present case. It is clear from the recitals of the Trust Deed that the settlor created the trust in favour of few persons some of whom are in existence, namely, Pradeep Coomar and some are not, that is, sons of Pradeep Coomar. It is admitted that, Pradeep Coomar was subsequently married but he has no children either biological of adopted. In our opinion the trust is velid with regard to the person who was in existence at the time of settlor's death and is invalid as to the rest. In this connection we rely upon a decision in the case of (4) Raj Bajrang Bahadur Singh v. Thakurain Bhaktraj Kuer reported in AIR 1953 SC 7 : 1952 SCJ 655. In this reported case there was creation of interest through gift to a class of series of persons some of whom were in existence and some were unborn. It was held by the Supreme Court that, “It is true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of whom are in existence and some are not it does not fail in its entirety, it is valid with regard to the persons who are in existence at the time of the testator's death and is invalid as to the rest.” This principle can be applied in the instant case. Therefore, when the trust deed was executed Pradeep Coomar was alive and he was also alive when the testator or settlor Monmohini Coomar died. The trust was valid with regard to Pradeep Coomar and invalid as to the rest, that is, the children of Pradeep Coomar and in fact, Pradeep Coomar has no children. Accordingly, the trust Deed was valid as it relates to Pradeep Coomar and in fact, Pradeep Coomar was the sole beneficiary and the deed was created only for the Pradeep Coomar. 21. Accordingly, the trust Deed was valid as it relates to Pradeep Coomar and in fact, Pradeep Coomar was the sole beneficiary and the deed was created only for the Pradeep Coomar. 21. The above discussion makes it clear that the appellant/petitioner is not at all a necessary party and his claim has no foundation. He cannot be included in the proceeding under Sections 73 and 74 of the Trust Act. There is no merit in the appeal. There is no ground to stay operation of the order dated 23.5.2001 passed by learned trial Judge in GA No. 3113 of 2000 (arising out of A.T.A. No.3 of 2000). The appeal fails and is dismissed. All interim orders stands vacated. There will be no order as to costs. If applied for xerox certified copies of this judgment will be supplied to the parties expeditiously. Banerjea, J.: I agree.