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2011 DIGILAW 234 (CAL)

Lila Banerji v. Amit Bose

2011-02-18

SANJIB BANERJEE

body2011
JUDGMENT 1. THOUGH three questions have been framed in the originating summons under Chapter XIII of the Rules on the Original Side of this Court, it is only the first question that needs to be answered since that is the key to the apparent dispute between the parties. 2. ONE Sarajubala Kar created a trust on December 23, 1940 which, loosely speaking, provided that the settlor and the settlor's daughter Swarnalata Bose and the three sons of Swarnalata would be the beneficiaries thereunder. The trust deed envisaged several situations, including if the settlor survived the other beneficiaries; if the other beneficiaries died before a certain date (presumably since one of the grandson beneficiaries would then have still been a minor) and other possibilities. There appears to have been considerable thought in the preparation of the deed. Clause 7 of the deed in categorical terms provides the tenure of the trust. There is no dispute between the appearing parties nor has any question been framed as to the tenure since it is evident from clause 7 that the trust would cover the life-spans of the settlor and the four other beneficiaries named therein namely, Swarnalata and Swarnalata's sons Amalendu, Bimalendu and Nirmalendu. 3. CLAUSE 8 of the deed provides that on the death of the last survivor among the four beneficiaries other than the settlor or upon the death of the settlor in the event the settlor survived the four other beneficiaries, the trust estate would be divided and distributed among the heirs of the three grandsons. The manner of division indicated is that the heirs of Amalendu, Bimalendu and Nirmalendu would, absolutely and forever, get a third each of the trust estate. In other words, Amalendu's heirs would get one-third of the trust estate, Bimalendu's heirs would get one-third thereof and Nirmalendu's heirs would get a third thereof. 4. THE first question framed is as to whether the succession opens up only upon the death of the last survivor. That is obvious from a reading of clauses 7 and 8 of the deed which provides the tenure of the trust to cover the life-span of the settlor and life-spans the four other beneficiaries and stipulates that the trust would come to an end upon the death of the last survivor from amongst the settlor and the four other beneficiaries. That is obvious from a reading of clauses 7 and 8 of the deed which provides the tenure of the trust to cover the life-span of the settlor and life-spans the four other beneficiaries and stipulates that the trust would come to an end upon the death of the last survivor from amongst the settlor and the four other beneficiaries. THE trust deed, however, does not require that the heirs of Amalendu or Bimalendu or Nirmalendu, as on the date the succession opens up, would be entitled to the shares in the manner indicated in clause 8. In other words, the succession would open up upon the death of the last of the beneficiaries under the trust but the heirs of Amalendu as at Amalendu's death and the heirs of Bimalendu as at Bimalendu's death and the heirs of Nirmalendu as at Nirmalendu's death would be entitled to the one-third share each of the trust estate that each branch has been provided for under the deed. In the light of the view taken above, there is no necessity in particularising the relevant heirs of the three grandsons of the settlor who would now be entitled to the trust estate since, strictly speaking, such matter is not covered by the deed. Accordingly, CSOS No.4 of 2009 is disposed of by holding that since the last of the beneficiaries under the trust has expired, the assets and properties of the trust are now liable to be divided in three equal shares between the respective heirs of Amalendu, Bimalendu and Nirmalendu reckoned on the respective dates of death of Amalendu, Bimalendu and Nirmalendu. 5. THE Administrator will take steps accordingly and will stand discharged upon completion of the distribution within a period of four months from date. THE Administrator will distribute the assets of the trust after retaining his remuneration of Rs.3 lakh. THE Administrator will file a return and accounts for his discharge to be complete. 6. THERE will be no order as to costs. Urgent certified photographs of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.