Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 575 (ORI)

Subodh Kumar Bose v. State of Orissa

2018-05-18

BISWANATH RATH

body2018
JUDGMENT BISWANATH RATH, J. - Both the writ petitions involve a challenge to the order passed by the Revisional Authority in OLR Revision Case Nos.236 of 1984 and 239 of 1984 by the learned Member, Board of Revenue, Orissa disposed of in the common impugned order passed in exercise of power under Section 59(2) of the Orissa Land Reforms Act, 1960. 2. A common order was passed by the Revisional Authority involving both the aforesaid Revisions for the reason not only having common facts but also the question to be determined being similar in both the applications though involved two patches of land under two Tahasils. 3. At the beginning of the argument, Shri A.K. Mishra, learned Additional Government Advocate appearing for the opposite parties-State raising the question of maintainability of the writ petition for involvement of the locus standi of the petitioners in filing the aforesaid writ petitions, contended that looking to the factual disclosures and the parties involved in the proceedings bearing OLR Revision Case Nos.236 and 239 of 1984, both the petitioners have no locus standi to come up in the present writ petitions and consequently referring to several documents appended herein to establish the allegation on locus standi involving petitioners, more particularly, Shri Mishra, learned Addl. Government Advocate justifying his submission prayed for dismissal of the writ petitions on the ground of petitioners having no locus standi to file the writ petitions. Shri Mishra, learned Addl. Government Advocate referring to petitioner no.1 submitted that so far petitioner no.1 is concerned since the petitioner no.1 has filed the writ petitions in his personal capacity, the writ petition cannot be treated to be one by the Trust. Shri Mishra, learned Addl. Government Advocate taking this Court also to the materials available on record, submitted that there is in fact no trust involving the dispute property created in accordance with law. The documents involved herein indicating the properties to be managed by trustees is mere use of term in absence of a duly constituted Trust leaving the trustees have a very very limited role. 4. For involvement of the dispute on the maintainability of the writ petition, this Court before entering into the merit involving the cases proceed to decide the maintainability of the writ as a first step. 5. 4. For involvement of the dispute on the maintainability of the writ petition, this Court before entering into the merit involving the cases proceed to decide the maintainability of the writ as a first step. 5. Shri S.D. Das, learned senior counsel appearing for the petitioners in his counter to the claim of the learned Addl. Government Advocate referring to the position of the petitioners and also taking this Court to the development in the writ petitions by way of Misc. Case Nos.229 of 2008 and 230 of 2008, further referring to the pleadings in the Misc. Cases indicated hereinabove and the documents appended therein in both the writ petitions, contended that not only the petitioner no.1 in the original stage of the writ but on his death the petitioner no.2 has the locus standi to prosecute the present litigation. 6. Hearing the rival contentions and looking to the cause title involving the OLR Revision Nos.236 of 1984 and 239 of 1984, this Court finds, admittedly parties to the Revision are the Collector, Mayurbhanj as petitioner and Sir Daniel Hamilton Trust Estate represented through Sri Subodh Kumar Bose being trustee as opposite party. Petitioner no.2 is added pursuant to filing of an application for substitution of petitioner no.2 on the death of Subodh Kumar Bose vide Misc. Case Nos.229 of 2008 and 230 of 2008 involving death of Subodh Kumar Bose on 07.08.1995, but considered by this Court in its proceeding dated 26.07.2017 involving both the writ petitions. 7. Facts as revealed involving the lease of the disputed property by the Ruler of Mayurbhanj Estate and Sir Daniel MacKinnon Hamilton vide registered Deed No.1333 dated 13.03.1935. The lease deed appearing at Annexure-1 contains the following :- Lessor agrees to let and the lessee agrees to take all that tenement and all rights easements and privileges belonging thereto as per details and boundary given in the schedule and plan appended thereto for purpose of making a model farm and cooperative Training Institute attached thereto under the terms and conditions mentioned therein. This Court finds at paragraph-2 of the lease at Annexure-1, it is specifically agreed that the lessee shall either himself reside on or near the land covered by the lease or appoint a Manager or an Agent who shall reside on or near the leasehold and who shall be authorized by the lessee with full legal powers to act on behalf of the Principal in all matters arising out of the leasehold lands and Clause-3 mentioned the area covered by lease shall be brought gradually under cultivation by the lessee or his Manager or Agent and the lessee is hereby granted occupancy right in the said land which will be hereditary and transferable with the consent of the lessor. (Underlining is of this Court). Similarly, Clause-7 of the lease also contains that the lessee may transfer his entire right, title and interest under the lessee but subject always to the previous written consent of the lessor. (Underlining is of this Court). The lease also contains a clause that in the event of failure to observe any of the conditions of the lease, the lessor has the power to terminate the lease by a notice whereafter the rights and privileges of the lessee shall cease and terminate. 8. It is while the matter stood thus, it appears, Sir Daniel MacKinnon Hamilton executed his last ‘Will’ and ‘Testament’ on 13th day of December, 1939 appearing at Annexure-C/3 to the further affidavit of the opposite parties dated 23.08.1993. By this ‘Will’, Sir Daniel MacKinnon Hamilton on giving effect to the ‘Will’ in his favour appointed his wife Lady Margaret Elizabeth Hamilton, his cousin Mr. Daniel MacKinnon Hamilton and his another cousin – Mr. James Hamilton as his trustees and executors with power to co-opt other trustees and executors. By this ‘Will’, Sir Daniel MacKinnon Hamilton on giving effect to the ‘Will’ in his favour appointed his wife Lady Margaret Elizabeth Hamilton, his cousin Mr. Daniel MacKinnon Hamilton and his another cousin – Mr. James Hamilton as his trustees and executors with power to co-opt other trustees and executors. The ‘Will’ contains several intentions and the ‘Will’ so far as Indian property is concerned, bequeathing to his wife – Lady Margaret Elizabeth Hamilton life interest in all his Indian landed properties with further desire that she will have full control of the properties during her life time and on the death of his wife, there was also intention to bequeath all those Indian landed properties jointly to the Church of England, the Church of Scotland and the London Missionary Society (Indian branches) the properties to be held in trust by these Churches and Society or the furtherance of missionary work in the rural areas of India – the Imperial Bank of India and the Manager of Gosaba to be co-opted as trustees. So, from this ‘Will’ it becomes clear that the properties leased out in favour of Sir Daniel MacKinnon Hamilton on the death of his wife was to be controlled and managed under the trust by the Churches mentioned therein and Society with Imperial Bank of India and the Manager of Gosaba to be co-opted as trustees. Status of the property still continues to be leasehold properties. A document is available at Annexure-D/3 created on 13th day of June, 1946 where James Hamilton, the sole surviving trustee acting under the last ‘Will’ and ‘Testament’ created by Sir Daniel MacKinnon Hamilton assume his wife – Mrs. Anne Hill or Hamilton as a trustee under the last ‘Will’ and ‘Testament’. This document establishes that there is creation of a co-trustee again. Here, another deed surfaces vide Annexure-E/3 taking into account the property fell to the trust estate under the last ‘Will’ and ‘Testament’ for the death of wife of Sir Daniel MacKinnon Hamilton to the Church of Scotland and London Missionary Society. This document establishes that there is creation of a co-trustee again. Here, another deed surfaces vide Annexure-E/3 taking into account the property fell to the trust estate under the last ‘Will’ and ‘Testament’ for the death of wife of Sir Daniel MacKinnon Hamilton to the Church of Scotland and London Missionary Society. While declining the Office of Trustee for the said Indian landed properties belonged to Sir Daniel MacKinnon Hamilton, the (Foreign Mission Committee of the Church of Scotland on the request of James Hamilton and Miss Anne Hamilton) also renounced the bequeth in trust in favour of Church of Scotland (Indian branches) and all benefits which might have accrued to the Church of Scotland or its Missionary activities in India. This document makes it amply clear that the trust created by the ‘Will’ and ‘Testament’ of Sir Daniel MacKinnon Hamilton in respect of Indian properties got a natural death. From the document at Annexure- F/3 created on 26th of May, 1952, the Indian Church Trustee representing the Indian branch of Church of England separately constituted as the Church of India, Burma, Ceylon and Pakistan by virtue of a decision in the meeting on19.07.1950 decided that they are not prepared to accept the legacy under Late Sir Daniel MacKinnon Hamilton’s ‘Will’ and that James Hamilton and Mrs. Anne Hamilton, the then trustees of Sir Daniel MacKinnon Hamilton have requested the Church of india, Burma, Ceylon and Pakistan to make a formal declinature of trusteeship and renunciation of the said bequeth. Therefore, they on behalf of the Church of India, Burma, Ceylon and Pakistan declined the Office of the Trustee for the administration of the said Indian landed properties belonged to Sir Daniel MacKinnon Hamilton. In another development taking place on 03.06.1953 a London Missionary Society decides that the Society is unable to accept the trust and by resolution dated 29.04.1953 resolved that the Society renounced the provision made in the ‘Will’ of Sir Daniel MacKinnon Hamilton in favour of the Society and thereby renounced the bequeth in trust in favour of London Missionary Society and all benefits by such document. Vide Annexure-H/3, this Court finds, on 13.04.1969 James Hamilton and Mrs. Vide Annexure-H/3, this Court finds, on 13.04.1969 James Hamilton and Mrs. Anne Hill or Hamilton, the trustees acting under the last ‘Will’ and ‘Testament’ granted by Sir Daniel MacKinnon Hamilton assume Doctor Gopi Nath Barman, Gosaba, 24 Parganna, West Bengal, India and Sri Subodh Kumar Bose as additional trustees under the last ‘Will’ and ‘Testament’ and both of them dispose and convey to themselves and Dr. Gopi Nath Barman and Sri Subodh Kumar Bose as trustees under the last ‘Will’ and ‘Testament’ and to the survivor of them and the heir of the last survivor All and Sundry the whole trust estate and effects, heritable and movable, real and personal of every description, and wherever situated belonging to them and under the control as trustee. This document makes it clear the induction of Dr. Gopi Nath Barman and Subodh Kumar Bose as additional trustees, the trust estate appears to be a self proclaimed trust estate without support of law. 9. Verification of all these documents finds the development until induction of Dr. Gopi Nath Barman and Subodh Kumar Bose as the additional trustees of the leasehold properties under the ‘Will’ and ‘Testament’ of Sir Daniel MacKinnon Hamilton. It is at this stage, this Court observes that the cause title of the writ petitions though at the original stage indicated, the writ petitions are filed by Subodh Kumar Bose and Dr. Gopi Nath Barman undoubtedly in their individual capacity, but the order of revision impugned in the writ petitions has the cause title indicating at Annexure-4, the opposite party as Sir Daniel MacKinnon Hamilton Trust Estate through Subodh Kumar Bose as trustee. From Annexure-4 it becomes clear that both the revisions filed by Collector, Mayurbhanj made Sir Daniel MacKinnon Hamilton as a party may be the trust, represented through Sri Subodh Kumar Bose as a trustee. This Court finds surprise in the cause title of the writ petitions, the writ petitions though challenged the order involving OLR Revision Nos.236 of 1984 and 239 of 1984, but being preferred by Sri Subodh Kumar Bose and Dr. Gopi Nath Barman both disclosing their position as Trustee of the Sir Daniel MacKinnon Hamilton Trust Estate does not appear to be in terms of the cause title involving the revisions. Gopi Nath Barman both disclosing their position as Trustee of the Sir Daniel MacKinnon Hamilton Trust Estate does not appear to be in terms of the cause title involving the revisions. A close scrutiny of the documents referred to hereinabove, goes to make it clear that under the last ‘Will’ and ‘Testament’ of Sir Daniel MacKinnon Hamilton, the leasehold property on the death of his wife was to be looked into by the trustees with further rider to the trustees to co-opt additional trustees. Therefore, there is no trust called Daniel MacKinnon Hamilton Trust Estate ever existed. Further, even assuming the revision was involving the leasehold properties leased out to Sir Daniel MacKinnon Hamilton, the proceeding involving OLR Revision Nos.236 of 1984 and 239 of 1984 can only be undertaken by the trustees. On the death of Subodh Kumar Bose and also the death of Dr. Gopi Nath Barman and relinquishment of trusteeship by the other trustees as disclosed hereinabove in phase manner, there remain no trustee to represent the leasehold properties of Sir Daniel MacKinnon Hamilton for a clause contained in the lease deed that the property under the ‘Will’ was devoted with a particular purpose and to be looked into by the trustees in the manner described hereinabove from time to time and with a clear condition in the lease deed dated 13.03.1935 the lessee was granted with only occupancy right with a rider for hereditary and transferable, but however with the consent of the lessor and particularly keeping in view that there is no appointment of the legal heirs of Dr. Gopi Nath Barman as co-trustees by the existing trustees at any point of time at least during the survival of Subodh Kumar Bose and Dr. Gopi Nath Barman, this Court observes, not only the filing of the writ petitions by Subodh Kumar Bose and Dr. Gopi Nath Barman is not maintainable, but the legal heirs of Dr. Gopi Nath Barman have also no locus standi standi to carry forward the litigation involving OLR Revision Nos.236 & 239 of 1984. This Court on entire reading of materials available on record nowhere finds creation of Trust involving the property willed. Only thing that surfaces from the materials as well as pleadings is appointment of trustees for some time to manage the willed property. This Court on entire reading of materials available on record nowhere finds creation of Trust involving the property willed. Only thing that surfaces from the materials as well as pleadings is appointment of trustees for some time to manage the willed property. There is no creation of any Trust in the eye of law permitting anybody to claim of continuance by imposing himself as legal heirs of trustees appointed just to guard the properties under Will for some time. This Court here also finds, bequeath of property is also made without consent of the owner of the property in terms of the lease. So transfer of property involved in the lease in absence of the consent of actual owner of the property does not also get the approval of law. 10. Further considering the claim and counter-claim of the parties involved herein on the existence of the Trust, this Court finds, under Section 7 of the Indian Trusts Act, 1882, a Trust may be created firstly by every person competent to contract and secondly with the permission of a principal Civil Court of Original Jurisdiction by or on behalf of a minor. For Section 8 of the Indian Trust Act, 1882, the subject matter of a Trust must be property transferable to the beneficiary. Looking to the conditions in the lease, particularly the lessee has a clear term that no transfer of the land is permissible without prior consent of the lessee. Admittedly, there is no consent of the lessee involved here consenting transfer of the property involved to the beneficiary by virtue of a Will. Thus it is not only a case that there is not only no Trust created following the provisions of law, the wish in the Will has also no sanctity for having no consent of the lessee in the matter of transfer of the property involved. 11. While parting away with the judgment, this Court here takes into consideration another development involving a Land Acquisition Misc. 11. While parting away with the judgment, this Court here takes into consideration another development involving a Land Acquisition Misc. Case No.31 of 1986 appearing at Annexure- N/3 to the affidavit of opposite party no.3 dated 23.11.1993 on a claim on behalf of Sir Daniel Mackinnon Hamilton Trust of the benefits on account of the lands acquired at a particular point of time, particularly in the district of Mayurbhanj, a Civil Court in exercise of power under Section 30 of the Land Acquisition Act, after examining the pleadings as well as the evidence material and oral in categoric term, came to observe that the alleged bequeath was in clear violation of the conditions stipulated in the lease deed, vide Annexure-9 therein. For the lease deed clearly containing a condition of bequeath with prior consent of the lessor and all the bequeaths made in the meantime having been made without the consent of the lessor, there remains no valid transfer of the property. It thus appears that a Civil Court of competency even declared the so-called Trust as a void Trust and created with illegal purpose, further contrary to the public policy. No pleading is forthcoming as to whether there has been any further development pursuant to the judgment involving Land Acquisition Misc. Case No.31 of 1986. Law is fairly well settled that the finding of a Civil Court can be utilized for collateral purpose. The Civil Court therein has also gone to the extent of observing even co-option of Sri Subodh Kumar Bose and Dr. Gopi Nath Barman as trustees are thoroughly inconsistent with the drift and purport of the original instrument. The findings of the Civil Court in the above mentioned case has also a great bearing in the case at hand. 12. For the whole discussions made herein above and the observations therein in the impugned orders, this Court finds, the decisions cited by Sri S.D.Das, learned senior counsel appearing for the petitioners are of no avail. Further, for the finding of this Court establishing the petitioners in the original form of the writ petition, the position of the party involved in the Revision involved herein, this Court observes that neither the petitioners nor the substituted legal heirs involving the original petitioner no.2 have locus standi to file the writ petitions. Both the writ petitions are thus not entertainable, as not maintainable at the instance of the petitioners. Both the writ petitions are thus not entertainable, as not maintainable at the instance of the petitioners. 13. Both the writ petitions thus stand dismissed as not maintainable at the instance of either of the petitioners. For dismissal of the writ applications on the ground of petitioners having no locus standi to pursue such litigation, this Court is not required to go into any other issue involved herein. In the circumstance, there is no order as to costs. Petitions dismissed.