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2023 DIGILAW 564 (UTT)

Neelam Parihar v. Annirudh Singh Katoch

2023-10-04

VIVEK BHARTI SHARMA

body2023
JUDGMENT : Vivek Bharti Sharma, J. This civil revision has been filed by the revisionists/defendant no.2 and 3 against the order dated 28.11.2022 passed by 2nd Additional District Judge, Nainital in “Misc. Civil Suit No.47/2007 “Anirudh Singh Katoch vs. Ashok Singh Bisht and others”, whereby the application filed by the revisionists/defendant no.2 and 3 under Section 151 of C.P.C. to declare the Thakur Dan Singh Trust extinguished, has been dismissed. 2. Learned counsel for the revisionists/defendant nos.2 and 3 would submit that the respondent nos.1 and 2/plaintiffs filed a suit against the revisionists/defendant nos.2 and 3 and respondent nos.3/defendant no.1 with the following prayer:- “(A) Discharge opposite party no.1 and no. 2 as Trustees of Thakur Dan Singh Bist Trust and new Trustees be appointed in their place. (B) Restrain opposite party no.3 from acting as the Chairman of the aforesaid Trust in the interest of justice otherwise the aforesaid Trust through its Chairman would suffer irreparable loss and injury. (C) Impound the beneficial interest of opposite party no.1 and no.2 as against themselves and all. (D) Allow the costs of the suit be awarded to the petitioners against the opposite parties. (E) Award any other relief for which the petitioners are found entitled be awarded to them against the opposite parties.” 3. (C) Impound the beneficial interest of opposite party no.1 and no.2 as against themselves and all. (D) Allow the costs of the suit be awarded to the petitioners against the opposite parties. (E) Award any other relief for which the petitioners are found entitled be awarded to them against the opposite parties.” 3. He would further submit that Thakur Dan Singh Trust (hereinafter to be referred as the Trust) was created by Thakur Dan Singh Bisht for benefit of his three wives; that in para XII of the Trust Deed it was specifically stated that on the death of the last surviving wife, the Trust property shall be available to and vest in the surviving daughters of the Author of the Trust and/or children of predeceased daughter, if any, in accordance with Hindu Law of Succession and Inheritance Act in force; that, before filing of the suit by respondent no.1 and 2/plaintiffs, the two wives, namely, Smt. Ganga Devi Bisht and Smt. Jagatraj Kumari Bisht of Thakur Dan Singh Bisht i.e. the Author of the Trust deed had already died and during the pendency of the suit the last surviving wife Smt. Leelawati also died on 08.11.2018; that, on the death of last surviving wife of the Author of the Trust deed, the revisionists/defendant nos.2 and 3 filed an application under Section 151 C.P.C. with a prayer that as all the wives of Thakur Dan Singh Bisht i.e. the beneficiary of the Trust-deed have died and purpose of the Trust is fulfilled, therefore, as per para XII of the Trust deed, the purpose of the Trust is fulfilled, therefore, the suit is not sustainable and is liable to be dismissed; that the learned Trial Court vide its order dated 28.11.2022 dismissed this application. 4. Learned counsel for the revisionists/defendant nos.2 and 3 would further submit that as per Section 77 of the Indian Trust Act, 1882, the Trust has extinguished as its purpose is completely fulfilled. 5. Learned counsel for the respondent no.1/plaintiff would submit that in holistic interpretation of para XII of the Trust Deed it is amply clear that after the death of all the wives of Author of the Trust, the property of the Trust shall vest in the surviving daughters and/or the children of daughter who predeceases the wives of Thakur Dan Singh Bisht, the Author of the Trust deed. Therefore, merely by death of all the three wives of the Author of the Trust Deed the purpose of the trust is not fulfilled. 6. Mr. Piyush Garg, learned counsel for the respondent no.2/plaintiff no.2 would submit that he has filed a short counter affidavit wherein at para 3 and 4 he has specifically stated that on 30.03.1963 Late Thakur Dan Singh Bisht had executed a registered Trust deed for sole purpose of maintenance of his three wives during their lifetime and it was also stipulated in the Trust deed that after the death of all the wives of Thakur Dan Singh Bisht, the purpose of the Trust would be fulfilled and the property would vest in the daughters and grandchildren as stated in para XII of the Trust-deed. 7. Mr. Tarun Pande, learned counsel for respondent no.3/defendant no.1 would submit that he has also filed a short affidavit to the effect that the purpose of the Trust Deed has fulfilled on the death of last surviving wife of the Author of the Trust deed Thakur Daan Singh Bisht in the year 2018, therefore, the Trust has extinguished. 8. Learned counsel for the revisionists/defendant nos.2 and 3, respondent no.2/plaintiff no.2 and respondent no.3/defendant no.1 would submit in unison that the purpose of the Trust is fulfilled by operation of Section 77 of the Indian Trust Act, 1882. 9. Perused the impugned order in the light of the submissions made by learned counsel for the parties. 10. The learned Trial Court in its order dated 28.11.2022 had dismissed this application moved by the revisionists/defendant nos.2 and 3 u/s 151 C.P.C. with the observation that the application is not maintainable in the light of Section 72, 73 and 74 of the Indian Trust Act, 1882 as the Court has got power to appoint the new Trustees. In the considered opinion of this Court, the learned Trial Court had not gone through the terms of the Trust deed, wherein it is specifically stated that the property of the Trustee shall vest in the daughters of the Author of the Trust Deed Thakur Daan Singh Bist and his grand children, if any of the daughter predeceases the death of last surviving wife of Thakur Dan Singh Bist. Para XII of the Trust deed specifically states that the property shall vest in daughters and grandchildren, i.e. to say, that after the death of last surviving wife of Thakur Dan Singh Bist the provisions of Indian Trust Act, 1882 shall not be applicable and this property shall devolve upon the daughters and grandchildren as stated in para XII of the Trust deed as per the Hindu Succession Act. 11. In “Shipping Corporation of Indian Ltd. vs. Machado Brothers and others 2004 (11) SCC 168 ” the Hon’ble Supreme Court has observed as under : “25. Thus it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice, which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not. 28. Therefore, in our opinion, the courts below erred in continuing an infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse.” 12. A perusal of the reply/objection filed by the respondent no.1/plaintiff before the court below (Annexure 8 to the revision) would reveal that the averment that the wives of the Author of the Trust deed Thakur Daan Singh Bist expired by 08.11.2018 is not specifically denied. Learned counsel for the respondent no.1/plaintiff no.1, however, would admit at Bar that the last surviving wife of Thakur Daan Singh Bisht died on 08.11.2018. 13. It would be opportune to visit Section 77 of the Indian Trust Act, 1882. It reads as under:- “77. Trust how extinguished.—A trust is extinguished— (a) when its purpose is completely fulfilled; or (b) when its purpose becomes unlawful; or (c) when the fulfilment of its purpose becomes impossible by destruction of the trust property or otherwise; or (d) when the trust, being revocable, is expressly revoked.” 14. It reads as under:- “77. Trust how extinguished.—A trust is extinguished— (a) when its purpose is completely fulfilled; or (b) when its purpose becomes unlawful; or (c) when the fulfilment of its purpose becomes impossible by destruction of the trust property or otherwise; or (d) when the trust, being revocable, is expressly revoked.” 14. In view of the above discussion, this Court is of the view that the impugned order passed by the Trial Court is bad in the eyes of law and is unsustainable. The learned Trial Court has failed to exercise the jurisdiction vested in it. Present civil revision is allowed. The order dated 28.11.2022 passed by the Trial Court on the application paper no.70-C is hereby set aside. Application paper no.70-C moved by the revisionists under Section 151 of C.P.C. stands allowed.