Research › Search › Judgment

Calcutta High Court · body

2024 DIGILAW 1284 (CAL)

Jayanta Lall Seal v. Trust Estate Mutty Lall Seal

2024-07-12

SUVRA GHOSH

body2024
JUDGMENT : Suvra Ghosh, J. 1. Facts which are not in dispute are enunciated hereunder:- 2. One Mutty Lal Seal created a Trust on 21st February, 1848 for a period of 99 years in respect of his entire property which ceased due to efflux of time in 1947. A new trust was created by the heirs of Mutty Lal Seal on or about 27th January, 1947 which is still in vogue. The trust deed provides that there shall be a total number of ten trustees at a time from the three branches of the descendants of Mutty Lal Seal namely Panna Lal Seal, Kanai Lal Seal and Gobinda Lal Seal out of whom three persons shall be appointed from the branch of Panna Lal Seal, three persons from the branch of Kanai Lal Seal and four persons from the branch of Gobinda Lal Seal. The trustees from the branch of Panna Lal and Kanai Lal Seal shall be appointed by voting and the trustees from the branch of Gobinda Lal Seal shall be appointed by rotation commencing from the eldest son of each family. If it is not possible to appoint the required number of trustees from any particular family branch, the said family branch shall be competent to appoint trustee from any of the three branches. If any trustee from the family branch of Gobinda Lal Seal dies, the post falling vacant shall be filled up within thirty days as per seniority. Only male heirs of the settlors shall be nominated as trustees and the female heirs shall not be eligible for the same. The present trust board is functioning for a period of five years with effect from 21st February, 2022 and one of trustees from the branch of Gobinda Lal Seal and sub-branch of Johur Lal Seal namely Amiya Nath Sain has expired without leaving behind any male heir as a result of which the sub-branch of Johur Lal Seal stands abolished. 3. Learned counsel for the petitioner has submitted that the petitioner is an heir of Gobinda Lal Seal from the sub-branch of Manik Lal Seal. Gobinda Lal’s family branch consists of his eight sons Peary Lal, Brojo Lal, Manik Lal, Bolye Lal, Amrita Lal, Kunjo Lal, Gosto Lal and Johur Lal. Gobinda Lal’s eldest son and his wife expired long ago and were issueless. Gobinda Lal’s family branch consists of his eight sons Peary Lal, Brojo Lal, Manik Lal, Bolye Lal, Amrita Lal, Kunjo Lal, Gosto Lal and Johur Lal. Gobinda Lal’s eldest son and his wife expired long ago and were issueless. The previous trust board for the period 2017 to 2022 appointed trustees from the family branch of Gobinda Lal from the sub-branch of Manik Lal, Bolye Lal, Amrita Lal and Kunjo Lal. In the present board for the period 2022 to 2027, trustees from Gobinda Lal’s branch have been selected from the sub-branches of Gosto Lal, Johur Lal, Peary Lal and Brojo Lal out of whom Amiya Nath Sain, who was appointed from the branch of Johur Lal expired on 3rd March, 2023. Since the branches of Peary Lal, Gosto Lal and Brojo Lal are already in the present board, the trustee to be appointed on demise of Amiya Nath Sain ought to be from the family branch of Manik Lal. As such, the petitioner who belongs to the family branch of Manik Lal is the only eligible person to be appointed as trustee in place of Amiya Nath Sain following policy of rotation as per provision of the trust deed. In support of his contention, learned counsel has taken this Court to the genealogical table annexed to the writ petition (annexure B) which demonstrates the branches and sub-branches of Gobinda Lal Seal. The petitioner applied before the trustees on 2nd June, 2023 seeking appointment as a trustee from the branch of Gobinda Lal in place of Amiya Nath Sain. The trustees have neither acted upon the said letter, nor appointed any trustee in place of the deceased. 4. The petitioner has challenged the authority of the manager of the trust to swear the affidavit-in-opposition on behalf of the trust on the ground that according to the trust deed, the manager is appointed by the trustees to carry on the work of the trust pursuant to direction of the trustees and perform other ministerial jobs. Since swearing of an affidavit is not merely a ministerial job, the manager has no authority to swear the same on behalf of the trust. 5. Learned counsel has placed reliance on the authorities in Sri Sushanta Malik alias Susanta Malik v/s Srei Equipment Finance Limited & Anr. Since swearing of an affidavit is not merely a ministerial job, the manager has no authority to swear the same on behalf of the trust. 5. Learned counsel has placed reliance on the authorities in Sri Sushanta Malik alias Susanta Malik v/s Srei Equipment Finance Limited & Anr. reported in 2015 SCC Online Cal 10473, Cholamandalam Investment and Finance Company Limited v/s. Uma Earth Movers and Another reported in 2024 SCC Online Cal 1922, M/s. Shanti Vijay and Co. And Others v/s. Princess Fatima Fouzia and Others reported in (1979) 4 SCC 602 , J.P. Srivastava & Sons (P) Ltd. And Others v/s. Gwalior Sugar Co. Ltd. and Others reported in (2005) 1 SCC 172 , Mahesh Tulshan v/s. Rajendra Kumar Banka & Ors. reported in 2001 SCC Online Cal 635, Gokul Chand De and Others v/s. Gopi Nath Dey and Others reported in 1952 SCC Online Cal 8 and Manhar Shivji Shethia and Others v/s. Lilavati Madhusudan Shethia and Others reported in 1999 SCC Online Bom 499 in support of his contention. 6. Speaking for the respondents, learned counsel for the respondents has, at the outset, submitted that this court has no jurisdiction to entertain the writ petition and the same should have been filed before the City Civil Court. The term “Principal Civil Court or original jurisdiction” as stated in Section 74 of the Indian Trusts Act, 1882 refers to the City Civil Court. 7. The affidavit-in-opposition has been sworn by the manager of the trust upon authorisation made in this regard by the trustees. Therefore the manager is competent to affirm such affidavit in terms of the trust deed. 8. On merits, learned counsel has submitted that the petitioner hails from the branch of Gobinda Lal Seal which comprises eight sub-branches. The trustees from the said branch are appointed by rotation in terms of the deed of trust. The petitioner served as a trustee from 2017 to 2022 and if he is nominated for a second time, the members from the other branches of Gobinda Lal who were never appointed as trustee would be deprived. Nomination of a trustee is taken up by the board of trustees and cannot be construed as a right accrued upon an individual. The petitioner served as a trustee from 2017 to 2022 and if he is nominated for a second time, the members from the other branches of Gobinda Lal who were never appointed as trustee would be deprived. Nomination of a trustee is taken up by the board of trustees and cannot be construed as a right accrued upon an individual. Referring to the decisions of this Court in earlier writ petitions pertaining to this trust, learned counsel has submitted that this Court has been pleased to observe that the direction for rotational appointment would relate to the sons of Gobinda Lal and not thereafter. Learned counsel further submits that all branches hailing from Gobinda Lal have not been represented till date. In reply to the submission made on behalf of the petitioner that three of the trustees Pashupati Lal, Manoj Lal and Mohit Lal have served two successive terms for the period 2012 to 2017 and 2017 to 2022, learned counsel has stated that these trustees belong to the family branch of Kanai Lal and Panna Lal and were appointed by way of election. The mode of appointment of trustees from the family branch of Gobinda Lal is by rotation and therefore there is no scope for the same trustee to be appointed for two successive terms. Also, there are only four living members in the branch of Panna Lal for which two of the three members in the said branch shall always remain as trustees for two successive terms. Since Gobinda Lal’s branch is nominated only according to seniority by rotation, it cannot be equated with nomination from the other branches. The trust deed authorises the trustees to select a new trustee upon death of a trustee and the petitioner is not entitled to such claim, in terms of the deed of trust. Learned counsel has placed reliance on the authorities in West Bengal Housing Infrastructure v/s. M/s. Impression reported in F.M.A. 1966 of 2015 and State of Maharashtra through Executive Engineer, Road Development Division No. 111, Panvel and Another v/s. Atlanta Limited reported in (2014) 11 SCC 619 in support of his contention. 9. I have considered the rival contention of the parties and material on record. 10. Before entering into the merits of the case, two technical issues which have been raised by the parties need to be dealt with. 9. I have considered the rival contention of the parties and material on record. 10. Before entering into the merits of the case, two technical issues which have been raised by the parties need to be dealt with. The petitioner has challenged the locus standi of the manager of the trust to affirm the affidavit-in-opposition on behalf of the trust on the ground that the trust deed does not authorize the manager to affirm the affidavit on behalf of the trustees since the manager can only perform ministerial jobs and other functions relating to the trust on instruction of the trustees. Affirming an affidavit not being a ministerial job, affidavit-in-opposition affirmed by the manager cannot be taken into consideration. 11. It appears that the manager of the trust has been duly authorized by the trustees to affirm the affidavit on their behalf vide resolution taken on 3rd March, 2022. Therefore the manager is entitled to affirm the affidavit-in-opposition on behalf of the trust. 12. The Hon’ble Supreme Court, in the authority in M/s. Shanti Vijay & Co. and others (supra), deals with delegation of functions by trustees except as provided under section 47 of The Indian Trusts Act, 1882. The authority holds that execution of contracts of sale by one or more of the trustees is not binding and has no legal effect and cannot be enforced. The authority in J.P. Srivastava and Sons (supra) also dwell upon the same proposition of law that trustees must execute the duties of their office jointly as a general rule subject to the following exceptions when one trustee may act for all :- (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly. 13. 13. Section 47 of the Act prohibits a trustee from delegating his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to such delegation. 14. In the present case, since the manager has been delegated to affirm the affidavit-in-opposition by all the trustees unanimously vide resolution taken on 3rd March, 2022, he can be held to be competent to affirm such affidavit-in-opposition. 15. Learned counsel for the respondents has submitted that according to section 74 of The Indian Trusts Act, 1882, the principal Civil Court of original jurisdiction which is the City Civil Court, Calcutta has jurisdiction to entertain the present application and the same is not maintainable before this Court. 16. Learned counsel has placed reliance on the authorities in State of Maharashtra (supra) and West Bengal Housing Infrastructure Development Corporation (supra) both of which deal with matters under The Arbitration and Conciliation Act, 1996. West Bengal Housing Development Corporation deals with the issue whether the Court of the learned Additional District Judge is a Court within the meaning of section 2(1)(e) of the 1996 Act. The Hon’ble Court has held therein that the Court of the Additional District Judge is also the principal Civil Court in the district as that of the learned District Judge. The ratio laid down in the said judgment can be distinguished from that of the present case. The authority in State of Maharashtra holds that the principal Civil Court of original jurisdiction insofar as the jurisdiction within district Thane is concerned is the Court of the district, Thane. 17. The term “principal Civil Court of original jurisdiction” has not been defined either in The Indian Trusts Act, 1882 or in the City Civil Court Act, 1953. In fact, section 5(4) of the 1953 act excludes the jurisdiction of the City Civil Court to try suits and proceedings of the description specified in the first schedule of the Act. The first schedule empowers the High Court to deal with suits and proceedings under any special law other than the Letters Patent. In fact, section 5(4) of the 1953 act excludes the jurisdiction of the City Civil Court to try suits and proceedings of the description specified in the first schedule of the Act. The first schedule empowers the High Court to deal with suits and proceedings under any special law other than the Letters Patent. In the authority in Manhar Shivji Sethia and Others (supra) the High Court of Bombay has been defined as the principal Civil Court of original jurisdiction. The authorities in Sri Susanta Malik (supra) and Chola Mandalam Investment (supra), in dealing with jurisdiction of a Court under The Arbitration and Conciliation Act, 1996 hold that where the value of the subject matter of the dispute in arbitration does not exceed Rs. 10 lakhs, an application under the 1996 Act can only be entertained by the City Civil Court, Calcutta and not the High Court exercising original jurisdiction. Also, the 1996 Act does not envisage any form of conflict between the principal Civil Court of original jurisdiction in a district and the High Court exercising such jurisdiction under the same district and the litigant is free to approach any of the Courts in terms of the pecuniary limits laid down. These propositions have no manner of application in the facts and circumstances of the present case. In view of the above, it can safely be held that the present application is maintainable before this Court. 18. Entering into the merits of the case, admittedly the total number of trustees at a given point of time is ten out of which three persons are appointed from the branch of Panna Lal, three persons from the branch of Kanai Lal and four persons from the branch of Gobinda Lal. The mode of appointment from the branches of Panna Lal and Kanai Lal is by voting and from the branch of Gobinda Lal by rotation commencing from eldest son of each family. The trust deed also contemplates that if it is not possible to appoint the required number of trustees from any particular family branch, the said branch shall be competent to appoint trustee from any of the three branches. 19. The trust deed also contemplates that if it is not possible to appoint the required number of trustees from any particular family branch, the said branch shall be competent to appoint trustee from any of the three branches. 19. In the present matter, the trust board is functioning with effect from 21st February, 2022 and one of the trustees from the branch of Gobinda Lal and sub-branch of Johur Lal namely Amiya Nath Sain has expired without leaving behind any male heir as a result of which no descendant remains from the sub-branch of Johur Lal. Appointment of trustee in place of Amiya Nath has to be made from the other sub-branches of Gobinda Lal. Persons from the sub-branches of Gosto Lal, Peary Lal and Brojo Lal have already been appointed trustees for the present tenure. The previous trust board for the period 2017 to 2022 had trustees from the sub-branch of Manik Lal, Bolye Lal, Amrita Lal and Kunjo Lal. The petitioner belongs to the branch of Manik Lal and was a trustee in the previous board. 20. In this case, the Court shall restrict itself in dealing with the appointment of trustee from the branch of Gobinda Lal since trustees from the branches of Panna Lal and Kanai Lal are by the process of voting. It is not unlikely that a particular person from the said branches becomes a trustee for two consecutive terms upon securing majority vote. Learned counsel for the respondents has also pointed out that since there are only four living members in the branch of Panna Lal, two out of three persons in the same branch shall always remain trustees for successive terms. The mode of appointment in the other two branches being different from Gobinda Lal’s branch, such appointment cannot be taken into consideration in determining the entitlement of the petitioner to be appointed in place of Amiya Nath Sain. 21. Section 73 of the 1882 Act envisages that upon death of a trustee, a new trustee may be appointed in his place by a person nominated for the purpose by the instrument of trust, if any, or if there be no such person, by the author of the trust or the surviving or continuing trustees. 21. Section 73 of the 1882 Act envisages that upon death of a trustee, a new trustee may be appointed in his place by a person nominated for the purpose by the instrument of trust, if any, or if there be no such person, by the author of the trust or the surviving or continuing trustees. Section 74 states that when it is found impracticable to appoint a new trustee under section 73, the beneficiary may apply to a principal Civil Court of original jurisdiction for appointment of a new trustee. The trust deed clearly spells out that in case of death of any trustee in the branch of Gobinda Lal, the eldest member of his family, be it a brother or a son shall be appointed as a trustee in place of the deceased. Therefore Amiya Nath, since deceased, can be replaced by the family members of the sub-branches of Manik Lal, Bolye Lal, Amrita Lal or Kunjo Lal since members of the sub-branches of Peary Lal, Brojo Lal and Gosto Lal are already trustees for the present tenure. The deed of trust does not provide any mechanism for identifying the eligible member within the said sub-branches in terms of seniority who has not been appointed earlier. Therefore the same ought to be determined by the trustees appointed from the branch of Gobinda Lal. The petitioner has submitted an application before the trust board on 2nd June, 2023 seeking to be appointed as a trustee from the family branch of Manik Lal in place of Amiya Nath Sain, since deceased. The application is yet to be considered by the board. Since the eligibility of the petitioner vis-à-vis the other members of the sub-branches of Gobinda Lal in respect of seniority by age is required to be determined, the trust board should deal with the application submitted by the petitioner upon granting reasonable opportunity of hearing to the petitioner in order to come to a conclusion with regard to the eligibility of the petitioner. 22. It is pertinent to mention that the authority in Mahesh Tulshan (supra) deals in summary procedures under section 34 of The Indian Trusts Act, 1882 and section 7 of The Charitable and Religious Trust Act, 1920 wherein an application is to be made by the trustee before the Court. 22. It is pertinent to mention that the authority in Mahesh Tulshan (supra) deals in summary procedures under section 34 of The Indian Trusts Act, 1882 and section 7 of The Charitable and Religious Trust Act, 1920 wherein an application is to be made by the trustee before the Court. In the authority in Manhar Shivji Sethia (supra), the Hon’ble High Court of Bombay relegated the application under section 74 of the 1882 Act to a suit upon holding that it was a contentious issue which would require investigation into facts. I am afraid the ratio laid down in both the authorities has no manner of application in the fact situation of the present case. 23. In view of the above, the application being A.T.A. 4 of 2023 is disposed of directing the trust board, particularly the trustees appointed from the branch of Gobinda Lal Seal to consider and dispose of the application submitted by the petitioner before them within one month from the date of communication of this judgment upon affording reasonable opportunity of hearing to the petitioner, in terms of the deed of trust. 24. There shall however be no order as to costs. 25. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.