Bijayesh Mukherji, J.
1. This is a suit raised on July 3, 1959, by three sons and two daughters of Moti Lall Sain, who died on November 4, 1955, principally for a declaration that a deed of mortgage bearing date November 29, 1946, for Rs. 25,000, and a deed of further charge bearing date January 19, 1949, for Rs. 5,000, executed by the first defendant, Sm. Nandarani Dassi, their mother and necessarily the widow of Moti Lall Saine, in favour of India Provident Co., Ltd., are void.
2. The Life Insurance Corporation of India (for short, LIC hereafter) is the statutory successor in interest of India Provident Co., Ltd. This is why LICfigures in this litigation, as the second defendant.
3. In the wake of the declaration the plaintiffs pray the Court for, two other reliefs sought, the ancillary ones, follow as a matter of course. First: the aforesaid two instruments be cancelled and delivered up. Second: LIC be restrained by an injunction from enforcing the two instruments of mortgage and further charge by suit No. 136 of 1958 raised in this Court on January 28, 1958, for just that: for enforcement thereof.
4. The date of institution of this suit: July 3, 1959: is, therefore, one year five months and six days after the date of institution of the suit by LIC: January 28, 1958. Both the suits have been heard one after another: the later suit (No. 863 of 1959) first and the earlier suit (No. 136 of 1958) thereafter; not immediately thereafter, but after an interval of Borne twenty-five days. And so soon I have finished delivering judgment in this suit (No. 863 of 1959). I shall deliver judgment in the other one (No. 136 of 1958J too.
5. The case, the plaintiffs come to court with, may best be stated by Inserting a pedigree they set out in the first paragraph of their plaint -- a pedigree which is not disputed at and during the trial, even though LIC, the second defendant and the only contesting defendant at that, pleads, presumably by way of abundant caution, in the first paragraph of its written statement:
'1. This defendant has no knowledge (of) and does not admit the allegations made in .........paragraph 1 of the plaint.'
Here is that pedigree not in the realm of any dispute:
Madhoo Sooden Sain
Moti Lal=Wife Nandarani
| (defendant No. 1)
| | | | |
Dalim Sm. Lakshmi Dinendra Sm. Binapani Krishna
Kumar, Sona, Kumar, (plaintiff Kumar,
plaintiff (Plaintiff (Plaintiff No.4). Plaintiff
No. 1) No.2). No.8). No.5).
6. Of the five plaintiffs, those numbering 1, 3 and 5 -- Dalim Kumar, Dinendra Kumar and Krishna Kumar, Sains all (the padded way of writing 'Sen') --are the sons of Moti Lall, since deceased. Of these three again, Dalim Kumar and Dinendra Kumar are maiors at the date the suit is instituted, Krishna Kumar is not. He is a minor under the age of eighteen years, as the cause title of the plaint describes him to be. The remaining two, Lakshmi Sona and Binapani, are the daughters of late Moti Lall. Of these two again, Lakshmi Sona is a major at the date of the institution of the suit; Binapani is not. She is a minor under the age of eighteen years, as the cause title of the plaint describes her to be as well. In this suit, both these minors, Binapani, plaintiff No. 4, and Krishna Kumar, plaintiff No. 5, are represented by Dalim Kumar, plaintiff No. 1, their brother and next friend. If LIC has no knowledge of, and does not admit, the pedigree just set out, as noticed in the preceding paragraph, it has equally no knowledge of, and does not admit either, such purported description Riven in the cause title of the plaint. The averment in paragraph 1 of its written statement, reproduced with a little excision, is just so. The portion excised traverses this: LIC's lack of knowledge of what the cause title of the plaint bears, and, therefore, no admission thereof on its part.
7. The history of the facts which have led up to this litigation divides itself into four stages:
(i) that between January 20, 1932, when Madhoo Sooden Sain created a trust by a voluntary deed of that date, exhibit C, as respects, amongst others, his undivided 4/21st share in 116 Cotton Street, Calcutta, (shortened hereafter into '116'), for the benefit of all -- Moti Lall, Nandarani, sons and daughters, as also grandsons and grand-daughters, of Moti Lall and Nandarani, and himself too, and June 15, 1936, when Modhoo Sooden, the settlor, executed a deed of rectification, exhibit D, 'purporting to remove the limitation and restriction put upon the power of the trustee to sell and mortgage the trust property irrespective of purposes mentioned in the deed of settlement, subject of course to the consent, sanction and approval of the settlor and his son Moti Lall Sain', as the averment in paragraph 5 of the plaint puts it;
(ii) that between December 21, 1939, when Moti Lall Sain retired from trusteeship and appointed his wife Nandarani as the sole trustee in his place, by an apposite deed, exhibit B(1), and June 19, 1944, and thereabouts when in a partition suit in this Court, -- suit No. 1152 of 1909 --, in lieu of undivided 4/21st share of '116', Nandarani was allotted, on the foot of the return of the commissioner of partition, lot A delineated in the map attached to the commissioner's return(2);
(iii) that between November 29, 1946, when Nandarani, qua sole trustee to the estate of Modhoo Sooden Sain, with the consent in writing dated May 12, 1946, exhibit 3 and D.D. 6, of her husband Moti Lall, raised a loan of Rs. 25,000, on a mortgage of 4/21st share (since divided) of '116', to India Provident Co., Ltd., the deed of mortgage being exhibit 1 and a common document too: P.D. 4 and D.D. 4 and January 19, 1949, when Nandarani raised a further loan of Rs. 5,000 from the same company on execution of a deed of further charge, exhibit 2, and a common document again: P.D. 5 and D.D. 5; and
(iv) that between January 28, 1958, when LIC, the statutory successor in interest of India Provident Co., Ltd., raised the action (suit No. 136 of 1958) in this Court for enforcement of Nandarani's mortgage and further charge as above, and March 5, 1959, or thereabouts, when the plaintiffs, as they aver in paragraph 11 of their plaint, 'came to know for the first time about the said deed of mortgage and deed of charge.'
8. Hence this suit on July 3, 1959, the burden of the suit being:
A. The plaintiffs, who are the sons and daughters of Moti Lall Sain, are the only beneficiaries along with Nandarani herself under the deed of trust bearing date January 20, 1932, exhibit C: paragraph 4 of the plaint.
B. The settlor, Modhoo Sooden Sain, having reserved no power to alter any term of the original deed of trust, had no power either, to remove the restriction imposed on the trustees. But this is exactly what he did by the deed of rectification bearing date June 15, 1936, exhibit D, which is, therefore, 'void, illegal and ineffective' and cannot do what it purports to have done: paragraph 5 ibid.
C. Ergo, neither the deed of mortgage bearing date November 29, 1946, exhibit 1, nor the deed of further charge bearing date January 19, 1949, exhibit 2, can receive effect, in breach of trust and in derogation of the rights of the plaintiffs qua beneficiaries as they have been; the more so, because of absence of legal necessity, of which the Indian Provident Co., Ltd. had notice. In any event, no mortgage by Nandarani there could be without Moti Lall's consent: paragraphs 8-10 Ibid.
9. Such then is the theme and thread of the suit which LIC, the second defendant, resists, but Nandarani, the first defendant and the mother of the plaintiffs, does not, as is so natural. The pleas LIC resists the suit with are, to notice only the gist thereof:
One, the allegation that Modhoo Sooden Sain, the settlor, had no power to remove the restriction, if that, in the original deed of trust is denied; is denied too, the deed of rectification dated June 15, 1936, being void, illegal or ineffective: paragraph 3 of the written statement.
Two, contravention of the original deed of trust, lack of power on the part of Nandarani, and absence of legal necessity, vitiating the deeds of mortgage and further charge, are denied. Moti Lall Sain's consent by writing dated May 12, 1946, to the execution of the mortgage is asserted: paragraphs 7 and 8 ibid.
Three, the suit is barred by limitation, the plaintiffs' knowledge for the first time on or about March 5, 1959, of the mortgage and the further charge being not admitted: paragraphs 20 and 9 ibid.
10. In view of such pleadings, six issues have been raised at the trial. They fall into three parts. The first part consists of issues, numbering 1 to 3, on the questions of Modhoo Sooden's power to execute the deed of rectification, as also the consequential power of Nandarani to execute the two instruments of mortgage and further charge she did, and that too whether with or without the consent of her husband Moti Lall. The second part consists of two issues, numbering 4 and 5, on the question of limitation. And the third part consists of a single issue, issue No. 6, the general one, on reliefs. With this introduction, I reproduce below the issues struck at the trial:
1. (a) Had the settlor Modhoo Sooden Sain any power to execute the deed of rectification dated June 15, 1936?
(b) If so, what is the effect of the aforesaid deed?
2. (a) Did Nandarani Dassi have any power to execute the deed of mortgage dated November 29, 1946?
(b) Were the aforesaid mortgage and the deed of further charge dated January 19, 1949, executed by Nandarani Dassi with the consent of her husband Moti Lall Sain?
3. Was the execution of the mortgage dated November 29, 1946, and of the deed of further charge dated January 19, 1949, by Nandarani Dasi made in contravention of the deed of trust dated January 20, 1932, as alleged in paragraphs 8 and 10 of the plaint?
4. Did the plaintiffs come to know of the aforesaid mortgage dated November 29, 1946, and of the aforesaid deed of further charge dated January 19, 1949, on or about March 5, 1959, as alleged in paragraph 11 of the plaint?
5. Is the plaintiffs' claim barred by limitation?
6. What reliefs, if any, are the plaintiffs entitled to?
11. Before I proceed to determine the issues, it is as well I place on record that the trial of this suit commenced before late Mr. Justice Law on April 21, 1965. It continued, with a break for three days on April 24, 25 and 26, 1965, until April 28, 1965, when the hearing was concluded. Dalim Kumar Sain, the first plaintiff and the only witness of the plaintiffs, was examined in full on April 21, 22 and 23, 1965. Naresh Chandra Majumdar, the solitary witness of the contesting defendant LIC, was examined in full on April 23, 1965, as well. Most unfortunately, however, Mr. Justice Law died before he could deliver the judgment. Ultimately, the suit appeared in my list and I took it up for hearing on January 3, 1967. Order 18, Rule 15, of the Procedure Code (5 of 1908), which enables a judge to continue the suit at the stage left by another who was prevented by death from concluding the trial, does not apply, by virtue of Order 49, Rule 3, Clause 4, ibid., in the exercise of this Court's ordinary original civil jurisdiction: just the jurisdiction I am seized of in hearing this suit. Such statute law apart, a division, of this Court, presided over by Harries, C. J. and Chakravartti, J. (as he then was) held as much in Sarba Ranjan Bysack v. Sm. Haripriya Dassi, (1949) 53 Cal WN 569. So, it was for me to hear the whole suit afresh and to enter into evidence over again. And certainly I would have done just that, but for the joint submission made by Mr. Sinha and Mr. Sen, the learned counsel for the plaintiffs and the contesting defendant respectively, that I should treat the evidence had before late Mr. Justice Law as evidence in the trial before me. Such submission over, the case was opened at length and I was taken, in the course of such opening, through the whole of the evidence given in the previous trial between the same parties. And the arguments on merits followed. This is a feature which is conspicuous by its absence in the Sarba Ranjan case, (1949) 53 Cal WN 569. There, far from both parties having consented through their counsel to treat the evidence before Khundkar, J., who unfortunately died and could not, therefore,complete the trial, as evidence in the second trial before Ormond, J., the defendant insisted on a trial de novo on the ground that neither Order 18, Rule 15, of the Code, expressly excluded, by Order 49, Rule 3, Clause 4, from the original side of this Court, nor Section 33 of the Evidence Act (1 of 1872), could be called in aid. But Ormond J. overruled such prayer and was in turn overruled by the Court of appeal. In the case before me, however, nothing of the kind happens. On the contrary, I am invited by counsel, for both parties to treat the evidence before Law J. as evidence before me too. And still I shall say: 'No; you must have a de novo trial and examine your witnesses over again.' A point as this did not fall to be considered in the Sarba Ranjan case, 1949-53 Cal WN 569. And a case is an authority for the proposition it actually decides: Brindaban Chandra Shaha v. Sureswar Shaha Paramanik, (1909) 10 Cal LJ 263. So, the Sarba Ranjan case, 1949-53 Cal WN 569 can neither rule nor govern here. What really rules and governs here is another class of case, the leading amongst which is the Full Bench decision of the Madras High Court in Jainab Bibi Saheba v. Hyderally Saheb, ILR 43 Mad 609 = (AIR 1920 Mad 547); thp law laid down therein may be put thus:
The consent of parties may make admissible the evidence given in a previous judicial proceeding between them in a case in which the conditions prescribed by section 33 (the benefit of which can be waived) do not exist.
In the Sarba Ranjan case, 1949-53 Cal WN 569 lack of consent of parties, indeed vehement opposition by the defendant, made the evidence given before Khundkar J. inadmissible as evidence before Ormond J. Here consent of parties makes the evidence given before Law J. admissible as evidence before me, no matter that, the conditions Section 33 of the Evidence Act prescribes, do not exist; no matter that Order 18, Rule 15, of the Procedure Code cannot touch this litigation. The principle appears to be that these rules of procedure are not rules of public policy, and, therefore, not that important, precluding the parties from waiving the benefit of such provisions. Indeed, it is always open to parties to waive a matter of mere procedure. To hold the contrary, in the context of what has happened before me, will come to saying that the Court can compel the parties to examine afresh witnesses whom they do not want to examine so, and with whose existing evidence on record of the previous trial between them they are content--a clear reductio ad absurdum, to my mind.
12. Now to merits, for a proper appraisal of which, what is needed first and foremost is a clear understanding of theoriginal deed of trust bearing date January 20, 1932, exhibit C, in so far as it is necessary for the point at issue: the point of the trustees' power to make a mortgage, in the litigation on hand. Here is an analysis of its terms with that end in view, and under suitable headings too;
A. By and between whom.
Modhoo Sooden Sain is of the one part, the first part. The said Modhoo Sooden Sain and his son Moti Lall Sain, the two trustees, are of the other part, the second part. There is the usual interpretation clause for the expression 'trustees'--an expression which includes the survivor of them, executors, administrators, etc.
B. What the trust deed conveys 'irrevocably' by way of settlement, in so far as it is material for the purposes of the case on hand.
'All that undivided four equal twenty-one part or share of '116', with a building, brick-built, 'partly four partly three partly two and partly one storied' and land 'containing an area of' 11 cottahs 8 chittacks and 34 square-feet, more or less: property which the settlor Modhoo Sooden Sain is 'absolutely seised and possessed of of otherwise well and sufficiently entitled to', as is to be gleaned from the introductory recitals, the testatum or witnessing clause, and the habendum, in the trust-deed, read with the first schedule thereto.
C. Condition of '116' in the sense what it is subject to at the date of tbe deed.
An agreement dated April 20, 1931, is there for sale of the settlor's 4/21st part or share in '116' to Sreelal Chamaria for Rs. 45,000, out of which the settlor was paid Rs. 1001 by way of earnest. It is hardly necessary to notice all that is set out in the deed about this agreement of sale between the settlor Modhoo Sooden Sain, on one hand, and Sreelal Chamaria, on the other. Suffice it to notice the following:
(a) Suit No. 1152 of 1909 again (referred to in paragraph 7 ante). The settlor is the plaintiff in the aforesaid suit--a suit for partition of '116'. Sreelal Chamaria and one Durga Prosad Chamaria are the defendants.
(b) The settlor would not be liable to pay any portion of the costs of the said two defendants. On the contrary, if it comes to paying costs by him, Sreelal Chamaria would pay Durga Prosad Chamaria such costs as would be payable by the settlor.
(c) In pursuance of the agreement dated April 20, 1931, for sale, Sreelal Chamaria was to complete the sale by a certain date, namely, November 30, 1931, but he could not. On Sreelal Chamaria having applied for time to complete the sale, he got what he had applied for, but on payment of--
(i) interest at the rate of Rs. 330 a month on the balance of the purchase money: Rs. 45,000 minus Rs. 1,001, and
(ii) a net monthly rent of Rs. 160 for the settlor's share in '116', exclusive of all rents, outgoings and taxes, until the sale was completed: vide the further introductory recitals in the deed of trust.
D. Powers of the trustees. Immediately after the habendum are recited the powers of trustees. Such powers are--
1. '............... the trustees shall be atliberty either to rescind or to specifically enforce the ............ agreement dated the20th day of April, 1931, 'for sale of the (settlor's) 4/21st part or share' of '116'.
2. '.........,..... in the event of the saidsale to Sreelal Chamaria being completed, the trustees shall invest the proceeds of sale, either in the purchase or mortgage of such moveable or immoveable properties, including Government securities, in Calcutta or in its suburbs, and at such price as the settlor, during his lifetime, and after his death, his son, the said Moti Lall Sam, may select or direct, with powers to vary such investments from tune to time, with the approval of the settlor during his lifetime, and after his death, with the approval and sanction of his son, the said Moti Lall Sain, and thereafter as they shall think fit and proper ...........'
3. Such investment apart, and that too in the event of the sale to Sreelal Chamaria being completed, 'the trustees shall invest the surplus income, if any, in any of the investments hereby authorised in augmentation of the capital of the trust-estate', as also the sale-proceeds of other properties purchased with the trust-money and compensation-money for acquisition under the Land Acquisition Act and allied statutes of any such trust-property.
E. Limitation upon such powers.
After setting out what the trustees 'shall stand and be possessed of', namely, (i) the properties purchased or mortgaged as the result of investment of sale-proceeds of the settlor's 4/21st share in '116', 'as also' (ii) 'the said messuages, lands, hereditaments and premises mentioned in the first schedule,' that is, '116',--and that can only be in the event of sale of '116' to Sreelal Chamaria not taking place, or so long as it does not take place, for once the sale is completed, the trustees can never stand and be possessed of '116'--, and after listing too the very various duties assigned to the trustees, such as (i) payment of municipal and other taxes, (ii) costs of necessary repairs, if any (iii) maintenance and residence of the settlor, his son Moti Lall, and Moti Lall's second wife Nandarani, (iv) maintenance, residence and education of Moti Lall's and Nandarani's sons and grandsons, (v) maintenance and marriage of each of their daughters and grand-daughters, a sum not exceeding Rs. 3,000 being earmarked for such marriage, (vi) the expenses for the upkeep of a motor-car or of a carriage and a carriage-horse, so long as Moti Lall is unable to fend for himself, etc. etc., the trust-deed, by a proviso, curtails the power of the trustees in the manner following:
'Provided further and it is hereby further agreed and declared that the trustees shall have power, during the lifetime of the settlor, with his consent, and thereafter only with the consent of his son, the said Moti Lall Sain, to vary from time to time the investments herein referred to and for such purpose to sell or to mortgage, or to charge or to lease, or to dispose of the lands, hereditaments and premises ............... hereby settled and also the premises and investments that might be purchased or made out of the monies belonging to the trust hereby created, or any of them at such price or prices as the settlor or his said son Moti Lall Sain (as the case may be) approve or sanction.....' No more of the terms of the trust-deed bearing date January 20, 1932, need be noticed in order to understand the power of the trustees to make a mortgage, with which alone this litigation is concerned, and that too in the light of the deed of rectification, exhibit D, executed by the settlor, 'with the consent and concurrence' of the 'trustees' and 'beneficiaries,' as the rectification deed itself recites, some four years and five months later, to wit, on June 15, 1936. The position boils down to this:
A. On January 20, 1932, the date of the trust-deed, the agreement bearing date April 20, 1931, for sale of the settlor Modhoo Sooden's univided 4/21st part or share in '116', part of the trust-estate, to Sreelal Chamaria, stood.
B. The trustees were given, by the trust-deed, the liberty either to rescind or to enforce the said agreement.
C. Either of the two things could therefore, come to pass: completion of sale in pursuance and enforcement of the agreement for sale or no sale because of rescission of the agreement, the trustees having been given the power to do the one or the other.
D. What if the sale fails? '116', the settlor was absolutely seised and possessed of, the trustees would be absolutely seised and possessed of.
E. What if the sale is completed? The mandate of the trust-deed upon the trustees is:
(i) Invest the sale-proceeds in the purchase or mortgage of moveables or immoveables in and around Calcutta.
(ii) Settlor, Modhoo Sooden Sain, you do select the investments to be made so, and do settle the price thereof, too.
(iii) Moti Lall Sain, you do iust that when your father, the settlor Modhoo Sooden, is no more.
(iv) Do make periodic variations of such investments if you think fit. But get the approval of the settlor during his lifetime, and after his death, the approval of Moti Lall.
(v) For such purpose, that is to say, for periodic variations of such investments, subject to the fetters of approval (just noticed), mortgage you may--
I. the lands, hereditaments and premises settled by this trust-deed, that is, '116' and also
II. the properties you purchase out of the monies belonging to the trust-estate.
F. About the other class of investments, the trustees are called upon to make out of the surplus income, if any, etc., the mandate of the deed upon them is just so:
(i) Do make periodic variations of such investments, if you think fit. You have the power to do so. But get the approval of the settlor during his lifetime, and thereafter the approval of Moti Lall.
(ii) For such purpose, that is to say, for periodic variations of such investments also, subject to the fetters of approval (just noticed), mortgage you may--
(a) '116', and also
(b) the properties which might be purchased out of the monies belonging to the trust-estate.
It goes without saying that money obtained by way of compensation as the result of acquisition of the trust-estate or part thereof under the Land Acquisition Act and the like is money belonging to the trust-estate, and that is provided for likewise too, as just noticed.
13. Such then is the trust-deed of January 20, 1932, with its limited mandate upon the trustees to execute a mortgage. And the question of a mortgage bulks so large in the litigation depending before me.
14. Now to the deed of rectification bearing date June 15, 1936, some four years and five months after the trust-deed of January 20, 1932. A deed of rectification as this is by the same person Modhoo Sooden Sain. So, one who makes the deed of trust is the very one who rectifies it by the deed of rectification. What does such a one say as the reasons for rectification? The reasons he puts forward in the rectification deed itself are--
One, for the purpose of carrying out the directions (which included directions for payment of certain expenses out of the corpus of the trust-estate), and in particular, in the event of the agreement for sale to Sreelal Chamaria being 'rescinded and cancelled', he considered it expedient and necessary, indeed he intended,
(a) that the trustees should be invested with powers to deal with the corpus of the trust-estate,
(b) that they should have full and unrestricted powers to vary from time to time the investments mentioned in the trust-deed, and
(c) that they should have full and unrestricted powers as well, to sell, mortgage, charge, lease or dispose of the trust-estate or any portion thereof, subject to the approval of himself, during his lifetime, and after his death, the approval of his son, Moti Lall.
Two, he has just discovered that contrary to his intention and to the tenor of the trust-settlement, the words 'for such purpose' were through inadvertence inserted in the aforesaid deed of trust, though his real intention was not to use such words.
Three, the effect of such insertion is to put a limitation on the power of the trustees granted by the trust-settlement, but that was and is contrary to his intention and is calculated to hamper seriously the execution of the trust he made.
Four, he, therefore, desires to rectify the said mistake so as to remove all doubts as to the full and unrestricted powers of the trustees to deal with the corpus of the trust-estate and to make it clear that their powers in this respect are full and unrestricted and unfettered, subject only to the requisite approval (which has already been noticed more than once and need not, therefore, be repeated).
15. In the premises, what does the maker of the trust-deed, Modhoo Sooden Sain, do in his new deed: the deed of rectification? 'With the consent and concurrence' of the trustees (that is, his own and his son Moti Lall's) and of the beneficiaries (that is, his own, Moti Lall's and Nandarani's), 'by their joining in and executing these presents' (that is, the rectification deed), Modhoo Sooden, the settlor, 'doth declare, admit and acknowledge that the words 'for such purpose' shall be deemed to have been, by mistake and inadvertence, erroneously inserted and used between the word 'and' and the words 'to sell or to mortgage or to charge or to lease or to dispose of in the proviso (1) ............ and the same (the words 'for such purpose') should be and are hereby omitted, and/or deleted, or expunged from the within indenture of Trust Settlement, and the said indenture should be read and construed as if the said words 'for such purpose' were never incorporated between the word 'and' and the words 'to sell or to mortgage or to charge or to lease or to dispose of in the said proviso .......'
16. What goes before appears to be clear enough. Excise the words 'for such purpose' from the trust-deed of January 20, 1932. Proceed on the footing that the words were never there. But the common maker of both the documents--the deed of trust and the deed of rectification --does not stop there. He goes a little more:
'To the intent that the powers of the Trustees to deal with the corpus of the Trust estate are full and not restricted to the purpose of varying the within mentioned investment nor otherwise fettered in any way but are subject only to the consent, approval and sanction mentioned in the said proviso and This Indenture Further Witnesseth and it is hereby with like consent and concurrence expressly agreed and declared that the terms and provisions of these presents shall be deemed to be and are hereby incorporated in the within indenture of trust settlement.'
And they are so incorporated physically and so remain to this day, the deed of trust bearing date January 20, 1932, and the deed of rectification bearing date June 15, 1936, having been stitched together and thereby making one document to that extent.
17. This then is the deed of rectification which bulks so large in this litigation. What a deed as this is out to rectify cannot be clearer. The words 'for such purpose' are words inserted in the parent deed through mistake. More, the words are words contrary to the intention of the settlor and to the tenor of the deed as well. Expunge them, and read the parent deed as if the words were never there. So, the deed of rectification is clarity Itself. That is not in dispute. What is In dispute is the power of the settlor to rectify the trust-settlement in the manner he has done. That has been debated before me.
18. In order to follow such a debate, what exactly the proviso, where the controversial words 'for such purpose' occur, provides for, must be grasped. It consists of two parts . The first part clothes the trustees with the power to vary from time to time, with the consent of Modhoo Sooden, the settlor, during his lifetime, and thereafter only with the consent of his son, Moti Lall, the investments herein referred to. Now, what are the investments herein referred to, that is referred to in the deed of trust? Two types of investments are there to be seen. The first type is investment of sale-proceeds of '116' in moveables and immovables in and around Calcutta, in the event of Bale thereof, namely, '116', to Sreelal Chamaria being completed. [See paragraph 12 ante under the caption: D. Powers of trustees.] The second type is investment.
(i) of 'the surplus income, if any, in any of the investments hereby authorised in augmentation of the capital of the ............... trust-estate,'
(ii) by the purchase of premises and by the making of investments out of monies belonging to the trust, and
(iii) by the investment of the sale-proceeds etc. of such premises and investments, as also of compensation-money received for acquisition, under the Land Acquisition Act and allied statutes, of '116', or of the properties purchased with the trust-money, or of any part or parts thereof.
19. I place the second type of investments in the same category, because, in the ultimate analysis, it is the trust-money that the settlor proposes to be pressed into service. Be it the surplus income of any of the investments or the compensation-money as the result of acquisition, it is the trust-money all the same. No doubt, so viewed, in this category, comes also the investment of the sale-proceeds of '116' Sn the event of the sale thereof to Sreelal Chamaria. Because it is trust-money too. But for convenience of treatment of the subject, I keep it separate.
20. Such then are the investments 'herein referred to.' And such are the investments the trustees may vary from time to time with the requisite approval: that of Modhoo Sooden so long as he is alive and thereafter of his son Moti Lall. Here ends the first part of the proviso under discussion.
21. Now to the second part of the proviso with the controversial expression 'for such purpose' in it. For such purpose, that is, for periodic variation of the investments just noticed, the trustees shall have power to sell, mortgage, charge, lease or dispose of--
(a) the lands, hereditaments and premises hereby settled, that is, '116', and also
(b) the premises purchased and investments made out of monies belonging to the trust.
Here ends the second part of the proviso under discussion, leaving aside that part which makes provision for investment, dealt with already in paragraph 18 ante.
22. Now, do I see any mistake in the insertion and use of the words 'for such purpose' in a proviso as this? Mr. Sinha, appearing for the plaintiffs, sees no mistake here nor any evidence, far less 'clear and distinct evidence', of any manner of a mistake. He comments on the absence of the written instructions, on the foot of which the deed of trust, exhibit C, was drafted and drawn up, and non-examination of the solicitors, whose would have been the best evidence on the point as to what the original intention of the settlor Modhoo Sooden was. Mr. Sen, appearing for LIC the second defendant, sees in the use of the words 'for such purpose' a mistake, 'patent and palpable', (to quote his very words),--a mistake which proves itself and needs no evidence.
23. Let such rival contentions be examined in the light of variation of each of the two types of investment. Because, only for such purpose, that is to say, for periodic variation of each type of investment, the trustees have the power to enter into a mortgage of '116' and the property purchased with the trust-money. It am confining myself now to mortgage with which alone this litigation is concerned.]
24. Take first the investment of sale-proceeds of '116' in properties in and around Calcutta, in the event of the sale of '116' to Sreelal Chamaria being completed. The trustees have the power to vary, from time to time, such investment of the sale-proceeds of '116', in properties in and around Calcutta. For such purpose, that is, for such periodic variation, sure enough, '116' cannot be mortgaged by the trustees in whom '116' does not vest, so soon as the sale of '116' to Sreelal Chamaria is completed. '116' then vests in Sreelal Chamaria. The trustees can mortgage their property, not the property of another, the purchaser Chamaria. In this context, the words 'for such purpose' appear to be unmeaning. It is, as Mr. Sen contends, a mistake, 'patent and palpable', proving itself and needing no evidence.
25. Take now the other type of investment: investment of the surplus income of the existing investments, investment by the purchase of premises, etc, listed in paragraph 18 ante. The trustees may vary such investment too from time to time. For such purpose, that is, for such periodic variation, they may mortgage '116'. I would not call it unmeaning. Because '116' then vests in the trustees, the sale thereof, that is, of '116', to Sreelal Chamaria, having failed. Indeed, on that assumption only I can proceed so. Thus, the trustees can well mortgage that, namely, '116', which then vests in them. In this context, therefore, a provision as this does not defy meaning in the way it does in the other context.
26. But it looks so unusual, if not unreal, in that in providing so, the settlor is attaching far greater importance to the branch of a tree than to the tree itself.
The main corpus, '116', is the tree. And the investments of the surplus income, if any, and all that are so many branches of the tree. Compulsory acquisition of '116'--the whole of it--presents no problem. Then, the tree itself vanishes. Be that as it may, '116' is the settlor's property, neither yours nor mine. And if his true intention is that, it has been his pleasure to provide so: to mortgage even '116' for the purpose of periodic variation of investments made, (i) of the surplus income, if any, (ii) by purchase of property with the trust-money, ani all that --all arising out of the trust-estate in some form or other. The Court has little to do with it. Certainly the Court will not substitute its judgment for that of the settlor, the owner of '116.' How large is the power of the owner and how small is that of the Court, in relation to what the owner does with his property, may best be illustrated by that well-known passage from Lord Commissioner Wilmot's judgment in the old case of Bridgeman v. Green, (1757) 97 ER 22:
'............ our laws, very unfortunately for the owners, leave them at liberty to dissipate their fortunes as they please, to the ruin of themselves and their families. The Roman laws drew a line between liberality and profusion; they very wisely for the public, and very kindly for the parties, considered immoderate extravagance-- 'inconsulta largitio'--as a distemper of the mind, and treated a 'prodigus' as a mad man .................. They thought it safer for the public, as well as kinder to individuals, to lay by their estates whilst they were under the tyranny of their passions, and reserve them for their use, when under the direction of their reason. But our laws strike no such boundary; 'stat pro ratione voluntas' is the law with us; every man may give a part or all of his fortune to the most worthless object in the creation; and this Court never did, nor ever will, rescind or annul donations merely because they are improvident, and such as a wise man would not have made; ............ this Court disclaims any such, jurisdiction ........'
So do I, governing myself by the principle to be deduced from the above passage, even though the facts of that case are completely otherwise: the case of an overbearing footman and a moron of a master, who was prevailed upon, aided and abetted by an unscrupulous attorney, to execute conveyances of various forms, to his utter ruin. Hence, if the true intention of the settlor here, Modhoo Sooden Sain, is that: mortgage the main corpus, '116', for the purpose of periodic variation of such investments, his intention shall prevail over what the court considers to be right or wrong in a matter as this.
27. But is his true intention so, at the relevant time, at the inception of the trust? That is the point for determination. By the trust-deed, the trustees are saddled with so many duties to be performed. Here are the more important of them:
(i) payment of municipal and other taxes and outgoings payable for the time being as respects '116',
(ii) costs of necessary repairs, if any, (no house, it may be taken for granted, being above repairs),
(iii) expenses for the maintenance and residence of the settlor Modhoo Sooden himself, as also for the maintenance and residence in a suitable manner of his son Moti Lall and his daughter-in-law Nandarani during the natural life of each,
(iv) expenses for the maintenance, residence and education of the sons (including adopted son) and grandsons of Moti Lall, until they respectively attain the age of eighteen years.
(v) expenses for the maintenance of the daughters and grand-daughters of Moti Lall, until they are respectively married, a sum not exceeding Rs. 3,000 being earmarked for the marriage of each in a suitable manner,
(vi) expenses for the upkeep of a motor-car or of a carriage and a carriage-horse, so long as Moti Lall is not in a position, by his own earnings, to meet the same, or in case Moti Lall, by his own earnings, is capable of defraying any portion of such expenses, the expenses by the trustees for payment of the deficit amount, and
(vii) expenses for the funeral and 'shrad' ceremonies of the settlor Modhoo Sooden, at a sum not exceeding Rs. 1500, of his son Moti Lall, at a sum not exceeding Rs. 1,000, and of his daughter-in-law Nandarani, at a sum not exceeding Rs. 500.
A formidable list of duties, by any standard, imposed upon the trustees by the maker of the trust--duties which mean expenses on quite a large scale to be met out of the corpus of the trust-estate. And what is the corpus? '116' is one, and much the most important too. And what is the other, the only other, going by the trust-deed? Eighteen types of ornaments --gold, pearl and diamond -- and sixteen types of furniture listed in the second schedule to the trust-deed. '116' is listed in the first schedule. This then is the whole of the corpus of the trust-estate. Ornaments and furniture do not yield any running income. Do they? You may sell them outright; but that is another matter. The house, which is '116', does. But how much such running income from '116' in the shape of rent comes to? About Rs. 1100 or Rs. 1200, as Dalim Kumar says in his evidence (q. 69). I take it, though he does not say so, the rent is so: Rs. 1100 or Rs. 1200 a month. Not that Dalim Kumar's evidence has anything to merit commendation. It has little. Fencing is indeed writ large upon the whole of his evidence. Born in September 1932, as the entry in the birth register, exhibit A, goes to show, he is thirty-three years of age at the time he gives evidence in court. So he admits too (q. 15). Incidentally, there has been cross-examination yet about the birth certificate, the certified copy of which -- exhibit A is just that over the signature of the Chief Executive Officer, Municipal Corporation, Chandernagore, -- is automatic evidence as a public document under the conjoint effect of Sections 35 and 77 of the Evidence Act (1 of 1872). More, it 'is evidence and conclusive evidence unless disproved': Nanhak Lall v. Baijnath Agar-walla, AIR 1935 Pat 474, and if I may refer to my decision without any Impropriety, Anil Krishna Basak v. Sailendra Nath Paul, (1965) 69 Cal WN 593 at p. 602.
28. XX xx xxXX XX XX
Even on December 21, 1939, when Moti Lall retired as a trustee and nominated Nandarani as the sole trustee, by a deed of appointment, exhibit B, in the schedule thereto, the rent in his share of '116' was put as Rs. 160 a month since July 1937. If that is taken as the yardstick, the true intention on the part of the settlor not to put a clog on the powers of the trustees proves itself. Sure enough, with Rs. 160 a month, none of the imposing array of duties imposed upon the trustees can ever be performed, unless they know how to weld a magic wand. Yet let me stretch in favour of the plaintiffs to the breaking point and assume that the income from '116' was Rs. 1100 or Rs. 1200 a month.
29. Is that even reasonably enough for so many financial obligations cast upon the trustees, of whom the settlor Modhoo Sooden is one, by the trust-deed, and for so many years to come? Let it be remembered too that the settlor is none too solvent then. '116' itself is at the relevant time under an agreement for sale to Sreelal Chamaria for Rs. 45,000, out of which Modhoo Sooden has received Rs. 1,000. More, it has been stipulated that, until completion of the sale to Chamaria, Modhoo Sooden will get from him Rs. 490 a month. See paragraph 12; C ante. With the agreement for sale rescinded, as indeed it was rescinded, that income goes. Placed so, and with so many financial obligations to be discharged over the years in future, will such a one intend to tie up '116' in the manner it is tied up, because of the words 'for such purpose'? And how crippled the trustees will be, because of thesewords, is plain to be seen, I am now looking a little beyond mortgage, to realize the full impact of the limitation, caused by the words 'for such purpose'. For such purpose, that is, for the purpose of periodic variation in investments of the second type (paragraph 18), if they come into existence ever, because the liabilities the trustees have to wrestle with look much more than the assets they have on their hands, they have the power to sell, mortgage, charge, lease or dispose of '116'. Now, let not the milieu of '116' be forgotten for a moment. It is in Cotton Street. Cotton Street is Cotton Street in Burrabazar area of the town of Calcutta, the very hub of trade and commerce, -- a notorious fact I take judicial notice of. Suppose, the trustees have a proposal for a lease with a fat rent and fatter premium within the bounds of law. But no investments of the second type there are. Upon all I see, there appears to be little chance of such investment having been there. Or even if they are there, no variation thereof can be done. In such a contingency, the trustees cannot enter into such a lease. By the 'for such purpose' clause, to enter into a lease is subject to taboo upon the trustees: 'No variation of investment, (assuming it to exist, its very existence ever being open to the gravest doubt), no lease, no matter how fat the rent and how fatter the premium'. Thus, the source of so huge an extra income remains dried up, with no possibility of the augmentation of the capital, even though the financial liabilities go on mounting over the years, -- and all because of the 'for such purpose' clause. And this is only illustrative, not exhaustive. It will be, indeed, an exercise in futility trying to demonstrate that a house property in Cotton Street may prove a veritable gold mine, if properly handled, free of shackles. Can a prudent man, therefore, bring himself to believe that such restriction imposed by the 'for such purpose' clause is the true intention, at the time of the creation of the trust, of the settlor, a prudent man too and the owner of '116' in a covetable part as this of the town of Calcutta? Or will not a prudent man take it for granted that that is a mistake which does not reflect the true intention of the settlor? The latter view appears to be far more probable. No wonder, the settlor goes for a deed of rectification and says as much, so soon as he discovers such a mistake contrary to his intention and contrary to the tenor of the trust-deed, as noticed in paragraph 14 ante.
30. Contrary to the tenor, because, calling upon the trustees to do so many things with expenses galore for long years to come, extending even up to the fourth generation of the settlor, and totie up '116', full of potentiality for a considerable additional income, in dead-hand for ever -- and the 'for such purpose' clause comes to that, in the ultimate analysis, -- go ill together. The burden then imposed upon the trustees becomes grossly unequal to the wherewithal to discharge such burden with. Sure enough, the eighteen types of ornaments, -- gold, pearl and diamond--, and the sixteen types of furniture, listed in the second schedule to the trust-deed and constituting the residue of the corpus of the trust-estate, cannot throw in their weight with a view to tilting the scales and making the unequals equal.
31. Upon the whole, therefore, I find as a fact that, at the time the settlor creates the trust, his true intention is --and such is the tenor of the trust-deed too -- that the trustees' power to deal with '116', the main corpus of the trust, are to be free and full, and not to be restricted by the 'for such purpose' clause. Only through inadvertence a clause as this is there in the trust-deed. And there is little to be surprised at such inadvertence, once what the trust-deed is like be remembered. Schedules apart, it runs into four pages, closely written--a specimen indeed of fine penmanship. These four pages in turn contain between themselves two hundred twenty-three lines. If, in this background, the settlor cannot see the wood for trees, what is there to cause surprise? I do not see any. A mistake is a mistake. Even with the best care in the world, people do make mistakes from time to time. The settlor Modhoo Sooden does no more.
32. In having come to this conclusion, I have endeavoured never to lose sight of the fact that, at the time Modhoo Sooden founds this trust, his son Moti Lall is an undischarged insolvent, as Mr. Sinha rightly reminds me. Modhoo Sooden says just so in the deed itself, exhibit C, when speaking about his three sons:
'... ... and the youngest Moti Lall Sain is at present an undischarged bankrupt.': vide the bottom of the first page of the original deed of trust, exhibit C.
More, Modhoo Sooden is not enthusiastic either, about the future of Moti Lall, the pleader, practising in the Small Causes Court, Calcutta, as he himself records immediately after the extract reproduced above:
'And whereas the settlor is desirous of making a provision for the maintenance of his son, the said Moti Lall Sain, about whose success in his profession, the settlor is not certain, and of his family other than his first wife, Srimati Radha Rani Dassi, who is living separately.'
It is, therefore, clear, as Mr. Sinha submits, and rightly, in my judgment, that Modhoo Sooden, by the trust-deed, is making provisions for his son Moti Lall, Moti Lall's second wife Nandarani, their children and their children's children. Be it so, From this, the inference by no means follows that his true intention at the time is to tie up '116' by the 'for such purpose' clause. A consideration as this cannot outweigh the considerations which lead me to hold that the true intention of the settlor, at the time he creates the trust, is to leave the power of the trustees to deal with '116' unfettered and unrestricted. That apart, solvent or insolvent, discharged bankrupt or undischarged bankrupt, Moti Lall is practically his only son at the relevant time. As he himself says in the trust-deed, of the three sons of his, the eldest Nandalall died unmarried in or about 1909, the second Kanailall has become a sannyasi whom he has, therefore, disinherited, and the third is Moti Lall. And to this practically lone son of his, he gives pride of place, only next to him, in all matters of importance, throughout the trust-deed. Sale-proceeds have to be invested? Investments have to be varied? Well, the approval of the settlor is a precondition, during his lifetime; and after his death, the approval of Moti Lall. The settlor is not discarding Moti Lall, even though he is an undischarged insolvent. And that Moti Lall is made a co-trustee with the settlor himself has been noticed. This manner of confidence in the son Moti Lall continues right up to the death of the settlor Modhoo Sooden, when he leaves behind him a will by which this very son of his, Moti Lall, is appointed executor. The date of Modhoo Sooden's death is April 8, 1939 -- more than seven years after execution of the trust-deed on January 20, 1932. The will has duly been probated too, the date thereof being August 10, 1939 or thereabouts. All this is to be found in Moti Lall's own document, the deed of appointment of a new trustee, exhibit B, by which he retires from the office of trustee, temporarily though, and nominates, just in keeping with the deed of trust, exhibit C, his wife Nandarani as the sole trustee. The date of a deed as this, exhibit B, is December 21, 1939. So, Moti Lall having been an undischarged insolvent can hardly be regarded as a mirror reflecting the settlor's true intention to tie up '116' by the 'for such purpose' clause. On top of that, that consideration of all considerations remains (paragraph 29) and may be stated at the risk of repetition. With Rs. 160 as the monthly income from '116', the performance by the trustees of so many duties, involving expenses and expenses over the years, brings the trust-deed on the verge of ridicule and absurdity. Surely, the settlor's intention is not to rush in for a sham trust-deed, with a view to bluffing himself, his son and daughter-in-law, their children and their children's children. With Rs. 1100 or Bs. 1200 as the monthly income from '116', the settlor does not land himself in such an absurdity. Even then, if the income remains stagnant, though '116', because it is '116', is full of possibility for earning more and more, it becomes impossible for the trustees to do what they are called upon to, up to the fourth generation of the settlor, in terms of the trust-deed. So, I reiterate my conclusion that the intention of the settlor, from the very beginning, is to leave unfettered the powers of the trustees to deal with '116', and not fettered by the 'for such purpose' clause: just what the settlor himself affirms in the rectification deed.
33. The authorities Mr. Sinha refers me to do not reach the contentions he advances. Tucker v. Bennett, decided on December 17, 1887, but come into the reports in 1888, (1887) 38 Ch D 1, is not a case of a voluntary deed which the settlor is out to set aside or rectify, just as is the case before me. It is a case of a marriage settlement, no doubt of a voluntary character, -- a settlement which the plaintiff, Mrs. Mary Tucker, for whose marriage the settlement was made by her father, wants to be modified in a manner so as not to prevent her having the power to dispose of her after-acquired property, even in the event of there being no children of the marriage. Up to the date of the litigation, she has none. And, by the very terms of the settlement, In default of children, she has no power of appointment over her after-acquired property. Certainly, a case as this requires strong evidence to justify rectification; the more so, as the instrument is a marriage settlement, and 'it is impossible to recall the marriage, or to remit the parties to the same position in which they were before the marriage', as observes Lopes, L. J.: page 16 of the report. Can this be said of the case on hand? By his deed of rectification, Modhoo Sooden remits the parties (including himself) to the same position in which they were before the deed of trust on January 20, 1932.
34. That apart, in the case under review, rectification is sought not by the settlor, but by his daughter, and that too through court. In the case on hand, rectification is sought and made by the settlor himself, without the intervention of the court, and with the concurrence of all concerned. Again, what counts is the evidence of the settlor's intention. If the evidence shows that the settlor had an Intention different from what the deed reveals, Court do alter the settlement. The Tucker case, (1887) 38 Ch D 1 is conspicuous by the absence of evidence of such intention. As Cotton, L.J. observes at page 14 of the report:
'Now no one for a moment doubts that where it is shewn that the actual contract and Intention of the contracting parties was different from that which is expressed in the deed, the Court has jurisdiction to alter it. But there is an enormous difference between altering a settlement under these circumstances, and altering a settlement when there is no evidence whatever that there was a different intention at the time when the deed was executed, as is the case here.' The enormous difference between the Tucker case, 1887-38 Ch D 1 and the case on hand lies just here. No evidence of a different intention in the one, but ample evidence in the other of an intention not to be fettered by the 'for such purpose' clause; such evidence being in the shape of the very contents of the trust-deed, as analysed above, and the rectification-deed, which is nothing but a solemn declaration by the settlor himself as to what his true intention was, at the time the trust-deed was executed.'
35. More, in the passage just quoted from Cotton, L.J.'s judgment, lies the answer to another contention of Mr. Sinha:
'Take a hypothetical case. Say, Modhoo Sooden, the settlor, raises an action himself for rectification of the deed of trust by deletion of the 'for such purpose' clause. Will you grant him a decree without insisting on other evidence?'
By 'other evidence' is meant the evidence of the solicitors entrusted with the drawing up of the deed of trust, surely on the foot of Modhoo Sooden's Instructions, and that again in the light of the change of solicitors when the deed of rectification comes to be made. To a hypothetical question as this, I shall give a hypothetical answer:
'Yes; I shall grant him a decree if I can bring myself to believe what he says in the witness-box, the test in a court of law being qualitative, not quantitative (Section 134 of the Evidence Act), it being so futile to expect evidence in the ideal sense, and the tenor of the deed as a whole going ill with the fetters imposed by the 'for such purpose' clause; so much so, that it makes the deed a sham document. And yet the deed will be clothed with sacrosanctity beyond repair.'
In sum, the test is that laid down by Cotton, L.J.: Actual intention different from that which is expressed in the deed? By that test, all I see and have referred to in the foregoing lines completely satisfies me that the intention of Modhoo Sooden, at the relevant time, is different from that the 'for such purpose' clause expresses.
36. At first sight it may look that the way I have been proceeding in reading the intention of Modhoo Sooden, at the time he executes the trust-deed, as also in answering the hypothetical question posed by Mr. Sinha is not the way in which Kekewich J. proceeded in Bonhote v. Henderson, (1895) 1 Ch 743, another case Mr. Sinha refers me to. But if the matter is looked into a little closely, it will be found that that is not so. On the contrary, there are observations there supporting the view I have been going by. In August 1894, the plaintiffs issued the writ in the action to rectify the voluntary settlement they had made on July 15, 1880. So they did, because they had recently discovered that the deed did not carry out their real intention which was that each of their two unmarried nieces should, in default of her having children, have the right to dispose of the capital of her fund as she pleased by will, and not that the power of disposition, on the death of one niece without children, would go over to the surviving niece. Upon such facts, I cull and indeed quote from the report. Kekewich, J. first heard it as a non-witness action on affidavit evidence and thereafter postponed it to be heard as a witness-action. The incapacity of the plaintiffs, in very infirm health then,-- one was over seventy-four, and the other over eighty years of age--rendered it impossible to cross-examine them, or to obtain from them information on the points which their affidavit left at large. So handicapped, upon the whole of the affidavit evidence and such oral evidence as was possible to be led, Kekewich J. held, to put it in the form of propositions,--
A. 'It is possible, and indeed probable, that they (the plaintiffs) did not thoroughly understand how the provisions of the settlement would or might work out, and even careful explanation might have failed to make them grasp the possible results.'
B. 'What I think most likely is, that they were content to adopt and act on Mr. Henderson's advice (Mr. Henderson being an equity counsel, a nephew, and a trusted friend of theirs), and to believe that the settlement was best in the form into which he had altered it.'
C. 'At any rate, I do not see my way to reforming a deed on these the only available materials, notwithstanding that now it operates otherwise than is wished, even though, as was strongly urged, the proposed rectification would bring the settlement more into harmony with recognised precedents, and the reasonable views of ladies desiring to make provision for unmarried nieces.'
37. Now, how do these propositions work out in the context of facts before me
Proposition A is just in consonance with what I have held in paragraph 31 ante, going by the contents of the trust-deed -- the best evidence in the circumstances. The more so, as the mother-tongue of the plaintiffs in the Bonhotte case, 1895-1 Ch 743 was English; but the mother-tongue of Modhoo Sooden was not; and the deed of trust, exhibit C, is couched throughout in what purists call 'legal' English or 'legal language', and bracket it with 'esoteric jargon,' -- sure enough, much too much for one like Modhoo Sooden.
Proposition B is nothing but a finding of fact come to by Kekewich J. upon the whole of materials he had had put before him, the finding being that the plaintiffs believed the settlement altered by Mr. Henderson to be the best. Here upon the whole of the materials it is impossible to find so. It need hardly be emphasized that a case cannot be an authority on a question of fact: Neta Ram v. Jiwan Lal : AIR1963SC499 .
Proposition C follows, as a matter of course, from the fact found, upon evidence, in proposition B. Once it is found as a fact that the true intention of the settlor, at the time he makes the settlment, is, say, X, it is futile to say that X plus 1 or X minus 1 brings the settlement more in harmony with the reasonable views of ladies desiring to make provision for unmarried nieces. When the settlor's intention is X, found as a fact, upon evidence, what does it matter that reforming the deed this way or that way brings the settlement more in harmony with this view or that, however reasonable it may be? It is not the court's settlement, according to what it considers to be reasonable. It is the settlement at the settlor. And his intention is clear. So, his intention will prevail over everything else.
Proposition C cannot, therefore, be attracted here. It cannot be, because the very internal evidence furnished by the trust-deed itself, containing amongst others a mistake, 'patent and palpable', and evincing an impossibility or a near-impossibility of carrying out the mandate of the trust, leads me to find as a fact that the true intention of the settlor was to remain untrammelled by the 'for such purpose' clause. See paragraphs 22-32 ante.
38. There is a little more yet about the Bonhotte case, 1895-1 Ch 743. The decision of Kekewich J., refusing to reform the deed and dismissing the action, was carried on appeal: Bonhotte v. Henderson, (1895) 2 Ch 202. The court of appeal (Lindley, Lopes and Kay L. JJ.) examined the evidence and found it wholly insufficient to shew that the intention, at the time the settlement was made, was different from that carried into effect by the settlement. Their Lordships, therefore, dismissed the appeal, but laid down no principle beyond referring to the observations of Cotton L.J. at the close of his judgment in the Tucker case, (1887) 38 Ch D 1. Those observations are:
'It requires very clear and distinct evidence to shew that there was some different intention at the time when the settlement was executed, and, with the exception of this, Wollaston v. Tribe, (1869) 9 Eq 44, there is hardly a single case when many years after the settlement was executed, on mere parol evidence, uncontradicted, because there was none to contradict it, the Court has altered a deed because one of the parties afterwards desired that it should not stand as it was executed.'
Here what I have before me is much more than mere parol evidence: the internal evidence of the trust-deed itself which, in the light of all surrounding circumstances, demotes the trust created to a farce and shows the settlor to be a consummate hypocrite, if the 'for such purpose' clause is regarded as his true intention. And delay? Only a little less than four years and a half in the case on hand; whereas in the Tucker case. (1887) 38 Ch D 1, the delay was fourteen years from 1871, the year of the settlement, to 1885, the year in which the action was brought, and in the Bonhotte case, 1895-1 Ch 743, the delay was as much, from July 15, 1880, the date of the voluntary settlement, to August 1894, when the plaintiffs issued the writ in their action.
39. Then, delay is not the answer; evidence is, delay or no delay. The authority Mr. Sen cites: Walker v. Armstrong. (1856) De G M & G 531, illustrates the point. A list of dates, about the facts of this case is apt to assist one's convenience:
1. June 1824.
A settlement made on the marriage of the plaintiff Captain Walker and his late wife Anne Walker gave a joint power of appointment to them over the whole, and also a power of testamentary appointment (notwithstanding coverture) over some of the real estates in contest in this litigation.
2. May 17, 1825.
On the discovery, sometime after the execution of the marriage settlement, that according to the limitations put in there, contrary to the wishes of the settlors, the daughters of a son of the marriage would not in any event take, and that Mrs. Walker would not be able to dispose of the estate not derived from her brother. Accordingly, these errors were rectified by a deed on this date (May 17, 1825), Captain Walker and his wife being of one part and the trustees of the other part thereto. (Cf. the deed of rectification in the case on hand.)
3. February 28, 1827.
Mrs. Walker made her will, reciting the power contained in the original settlement, and also every other power enabling her so to do.
4. October 24, 1840.
On this date again, contrary to the intention of the settlors, they appointed all the estates to such uses as they (Captain and Mrs. Walker) should by deed appoint, and in default thereof, during the joint lives of Captain and Mrs. Walker, as to one half in trust for Captain Walker and as to the other half, in trust for the separate use of Mrs. Walker, and after the decease of either to the use of the survivor for life, and after the decease of the survivor, to such uses as Mrs. Walker should by deed or will appoint etc.
5. December 1854.
Mrs. Walker died without issue.
41. Upon these facts, could the will Mrs. Walker had made on February 28, 1827 stand? It is a will she had neither altered nor revoked until her death in December 1854. Still it could not stand if the deed of October 24, 1840, operated as a revocation, as indeed it did ex facie. But upon evidence it stood proved manifestly that in order to cure the defect in the instrument of May 17, 1825, the Instrument of October 24, 1840, was prepared and framed, materially beyond instructions and authority, and executed too in error. So, the will stood. Hence I say, evidence is the answer, not delay, which in the Walker case, 1856 De G M & G 531 is plain to be seen: sixteen years from 1824 to 1840, without the intervention of the court, and more than thirty years, 1824 to beyond 1854 when Mrs. Walker died, giving rise to the litigation and intervention of the court thereafter.
42. Because of mistakes, not once but thrice, in 1824, 1825 and 1840, and that too by those whom law holds out to laymen to be competent hi such matters, it will not be perhaps out of place to notice how Knight Bruce L.J. opens his judgment in the Walker case, 1856 De G M & G 531 -- an opening Kekewich J. describes in the Bonhotte case, 1895-1 Ch 743 as 'famous for an example of Lord Justice Knight Bruce's humour' :
'This litigation owes its origin to the manner in which a series of professional gentlemen in the north of England permitted themselves to transact, or in more accurate phrase to entangle and perflex, some legal business intrusted to their care. These licenced pilots undertook to steer a post-captain through certain not very narrow straits of the law, and with abundance of sea room ran him aground on every shoal they could make. First In 1824, then in 1825, and again some years afterwards, was the gallant officer encumbered with help of a description for which he could perhaps supply a better term than I can.'
In the case on hand, 'the licenced pilots' ran Modhoo Sooden aground only on one shoal: the shoal of the 'for such purpose' clause, which is self-defeating, not only because of the mistake, 'patent and palpable', pointed out above (paragraphs 22-24 ante), but also because of a solemn trust being brought on the verge of ridicule and absurdity for reasons stated in the foregoing lines (paragraphs 25-32 ante). But soon enough, -- not even before the expiry of five years --, by when things remained as they were, with no vested rights to be defeated, Modhoo Sooden detected the mistake and cured it, luckily not running into a fresh mistake like the Walkers, and that too with 'the consent and concurrence' of all concerned as testified to by the signatures of all to the rectification deed. In the Walker case, 1856 De G M & G 531, the mistakes were proved manifestly by evidence. Here also the solitary mistake is proved to demonstration, so to say, by the Internal evidence of the original trust-deed itself and the surrounding circumstances, strengthened so much the more by the rectification deed, the author thereof and of the trust-deed being one and the same person Modhoo Sooden who takes the precaution of having the consent and signatures of all concerned.
43. I have also been referred to the law summarised in Halsbury's Laws of England. Mr. Sinha cites article 1684 at page 908, 3rd edition, in support of his contention that mere parol evidence. In absence of instructions for preparing the conveyance and the like, cannot vary a settlement already made. But parol evidence on oath is not valueless either. To notice the observations of Kekewich J. in the Bonhotte case, 1895-1 Ch 743--observations which lend support to the view I have taken, as stated in paragraph, 36 ante:
'It may be too much to say that no effect is to be given to a statement on oath that if the settlor had known the deed to be what it is he or she would not have executed It.'
Here also it is too much to say that no effect is to be given to the solemn declaration of Modhoo Sooden in the deed of rectification. Parol evidence of the settlor, coupled with evidence in the shape of instructions for preparation, of the deed, is not the only way to reach rectification either. As I have made it clear, I am not going that way at all. I am going instead by the internal evidence furnished by the deed. And in support thereof. I find the following in this very article: article 1684, Mr, Sinha quotes--
' ... ... notwithstanding the absence of any evidence from sources outside the settlement, or from any recital contained within it, that a mistake has been made, the deed itself may afford sufficient evidence of the intention to enable the Court to rectify the mistake.'
What enables the Court to rectify the mistake enables Modhoo Sooden so to do. I have held no more. And in so far as this article summarises the law laid down in the Tucker (1887) 38 Ch D 1 and Bonhotte case, 1895-1 Ch 743 I have little to add what goes before. The other article Mr. Sinha refers me to : Article 1707 at page 919 Ibid: merits like treatment
44. Mr. Sen, on the other hand, takes me to Article 1409, at page 839 of Halsbury's Laws of England, 3rd edn., volume 38, which bears:
'Where by mistake an Instrument creating trust of property does not express the intention of the disposer, it will be cancelled or rectified according as the true Intention of the disposer requires.'
Modhoo Sooden did no more.
45. Mr. Sen refers me also to page 117 of Underbill's Law of Trusts and Trustees, 10th edn., where I come across a succinct summary of the law laid down in the Walker case, (1856) 8 De G M & G 531 1 have governed myself by.
46. In sum, what counts is the true intention of the settlor. Once that is satisfactorily established, as it is here, the mere fact that the trust-deed conveys by way of settlement the trust-property irrevocably does not mean that the deed cannot be reformed. True it is, as Mr. Sinha points out, that the words 'irrevocably' and 'irrevocable' have been used in the original deed more than once. So what? A clear mistake being there, the intention of the settlor being not manifestly what the deed expresses it to be, irrevocability can be no bar to the deed's rectification, as Mr. Sen contends, and rightly, in my judgment.
47. This concludes all I have been addressed upon, on the first issue, which I reproduce below, so that one may not have to put his thumb across the previous pages in order to find out what it is, noting at the same time, my answers alongside, in the light of all that goes before from paragraph 12 ante:
I.(a)Had the settlor ModhooSooden Sain any power to ex-ecute the deed of rectificationdated June 15, 1936 ?
I.(a)Yes (b)If so, what is the effect of theaforesaid deed ?
(b)The trustee or trustees maymortgage '116' having been con-ferred by the trust-deed the re-quisite power so to do
48. I now take up the next two Issues, Issues numbering 2 and 3, which raise the questions of Nandarani's power to execute the mortgage-deed of November 29, 1946, and the validity thereof, as also of the deed of further charge dated January 19, 1949.
49. Nandarani is, at the relevant time, the sole trustee to the estate of Modhoo Sooden Sain. She is appointed as such by her husband Moti Lall Sain who retires from trustee-ship. This is In conformity with the provisions of the trust-deed and is not in the realm of controversy. The deed of appointment by Moti Lall is dated December 21, 1939, exhibit B, which is not in the, realm of controversy either. (1)
50. Almost seven years after her appointment as the sole trustee to the estate of her father-in-law Modhoo Sooden, she executes the mortgage, now impugned, for Rs. 25,000, not as respects the undivided 4/21st share of her father-in-law in 116 Cotton Street, the whole of which admeasures 11 cottahs 8 chittaks and 34 square feet(2), but as respects what is allotted in partition suit No. 1152 of 1909, namely, lot A(3),--and it was so allotted on June 19, 1944, or thereabouts--, admeasuring 1 cottah 14 chittaks and 3 square feet, as mentioned in the schedule to the mortgage-deed, exhibit 1, What are the grounds on which a mortgage as this is impugned? The grounds are three. One, Nandarani had no power to execute the mortgage she did. Two, she executed the mortgage without the consent of her husband Moti Lall(4). Three, a mortgage as this contravenes the provisions of the trust-deed. The first two grounds cover Issue No. 2. And, the third covers Issue No. 3.
51. None of the grounds can receive effect. Here, are the answers thereto seriatim:
52. One, by virtue of the original deed of trust as reformed by the deed of rectification, with the 'for such purpose' excised and deemed to have there never, the power of Nandarani, the sole trustee to the estate of Modhoo Sooden Sain, to execute the mortgage she did, does not appear to be arguable even. And it has notbeen argued either. What has been argued instead is lack of Nandarani's power because of the 'for such purpose' clause. But it has not been possible for me to accept such argument, resting on a clause which, because of the rectification deed, must be deemed to have never existed in the trust-deed.
53. Two, the consent of Moti Lall to such mortgage is evidenced by Moti Lall's letter dated May 12, 1946', exhibit 3, to the address of Nandarani, whom he addressed as 'Madam' and to whom he communicated, by this letter, his 'approval and consent' to her proposal 'to raise a loan of Rs. 25,000 on a mortgage of the divided 4/21 shares of premises No. 116 .................. Cotton Street' at aspecified interest, and that too, in accordance with 'the directions contained in the Deed of Trust Settlement executed by my late father Modhoo Sooden Sain on 20-1-32.' And Nandarani did mortgage just that on November 29, following, Dalim Kumar Sain, the first plaintiff and the only witness of the plaintiffs, seeks to escape from such an Inconvenient position, by trying not to admit his father Moti Lall's signature on this letter dated May 12, 1946. But ultimately he gives in and admits that the signature 'seems' to be his father's. And he is one who saw his father sign on many an occasion. Upon such evidence. Moti Lall's signature on this letter is tendered and marked exhibit 3-A, and very rightly too, because, by such evidence, Dalim Kumar's acquaintance with the signature of his father, within the meaning of the Explanation to Section 47 of the Evidence Act, is well proved. That being so, even the opinion evidence of a non-expert, which Dalim Kumar is, becomes good evidence to go by. No doubt, Dalim Kumar persists in 'fencing' after having been good enough to admit the little that goes before But that cannot pay. What a type he is can best be judged by this confronted with the signature of Moti Lall in the deed of trust, exhibit C, about which there is not even a breath of a controversy, first he will say no more than--
'It appears to be the signature of my father.': (q. 491).
Pressed to give a firm, answer, he condescends to say:
'It is my father's signature.': q. 492(a). Such is Dalim Kumar who attempts, but in vain, to evade the obvious. In vain, because his untrustworthiness apart, there is the evidence of the second defendant L.I.C.'s employee Naresh Chandra Malumdar in whose presence Moti Lall signed the letter of May 12. 1946, in his the then office (qq. 23-26). And upon such evidence, the whole of that letter gets into evidence, and very rightly too, if I may say so, as exhibit 3. First and last, the non-controversial signatures of Moti Lall in the trust-deed, exhibit C, and the rectification-deed, exhibit D. have only to be compared with his signature on this letter of May 12, 1946, exhibit 3, in order to be convinced that the signatories are one and the same person: Moti Lall Sain. It is, therefore, impossible to say that Nandarani executed the mortgage without the consent of Moti Lall.
53-A. Three, it is a mere rehash of what Roes under 'one' above (paragraph 52). No provisions of the trust-deed, as it stands after the deed of rectification, are contravened by Nandarani's mortgage.
54. What holds good about the mortgage of November 29, 1946, holds equally good about the deed of further charge dated January 19, 1949. One is indeed in continuation of the other--a small loan of Rs. 5,000 following as a matter of course a big loan of Rs. 25.000, taken with the prior written consent of Moti Lall, so necessary in terms of the deed of trust. Not that Moti Lall strains at a gnat and swallows a camel.
55. The ground I have covered so far from paragraph 48 is enough to answer the Issues I am on now, namely, issues 2 and 3, In favour of L.I.C. the second defendant. But the matter, concerning Nandarani's power to mortgage '116', the undivided 4/21st share of Modhoo Sooden Sain, converted in 1944 or thereabouts In partition suit No. 1152 of 1909 into a divided share pro tanto, namely, lot A, may be examined from another point of view. For such examination, let it be assumed that the deed of rectification fails in effect, and that necessarily, therefore, with the 'for such purpose' clause in the original deed of trust, no express power has been conferred upon Nandarani qua trustee to convey '116' by mortgage. What follows then? Is Nandarani as trustee In that case destitute of any power whatever to enter Into a mortgage? To consider the matter In this aspect I now proceed.
56. To the original trust-deed again. It provides that the trust-estate shall be for the use, benefit and enjoyment of the settlor, his son Moti Lall. Moti Lall's family, other than his first wife Radharani, during the natural lives of the settlor. Moti Lall and Moti. Lall's second wife Nandarani.
'subject however, to the payment of ............ the costs of necessary repairs if any, that the trustees may in their absolute discretion may think fit and proper .............''
The trust-deed, therefore, preserves, in the clearest possible terms, the implied discretionary power which vests, as a matter of course, in every trustee--the power to do all necessary acts for protecting the trust-property, in which is included the power to take necessary steps for keeping the property in repair. Section 36 of the Trusts Act, 2 of 1882, provides as much too:
'In addition to the power expressly conferred .................. by the instrument of trust, .................. a trustee may do all acts which are reasonable and proper for the ............ protection or benefit of the trust-property ...............'
I have quoted from Section 36 only the portion material for the point I am on now. So, the power of the trustee to keep the trust-property here in repair appears to be beyond question. The instrument of trust confers such power. So does the statute by Section 36.
57. Section 34, Mr. Sinha refers me to is no doubt there, enabling a trustee to apply for direction of the Court on the simple questions touching the management or administration of the trust-property. But it is an enabling section, and no more. All it says is: 'Any trustee may. without Instituting a suit, apply by petition to a principal Civil Court of original jurisdiction ..................' Not that any trustee must. So, Section 34 cannot in any manner take away the power, conferred on Nandarani qua trustee, by the instrument of trust and Section 36, to expend money for repair.
58. That is not the big question before me. The big question is: What was the repair like, if at all, for which Nandarani, the sole trustee, mortgage '116', the divided 4/21st share of Modhoo Sooden therein, to raise two loans from India Provident Co., Ltd.--one for Rs. 25.000 on November 29, 1946, and another for Rs. 5.000 on January 29, 1949? One answer to the question is in the mortgage-deed itself of November 29. 1946, exhibit 1, and in the following terms:
'And whereas by the Return filed in the records of the said suit and dated the 19th day of June 1944 made by ............
Mr. S.N. Bhattacharjee, Barrister-at-law, the Commissioner of partition, appointed in the said suit, allotted to the mortgagor, (1), for her 4/21 part or share in the said premises, lot A marked in the map or plan annexed thereto and coloured thereon in red. having an area of 1 cottah 14 chittacks and 3 square feet with buildings and structures to be held and enjoyed by her in severally ...............
And whereas by the said Return the Commissioner of Partition directed the Mortgagor to do certain things mentioned in the said Return in order to make her lot separate and independent.
And whereas pending the final confirmation of the said Return the said Mortgagor did by an order dated the 22nd day of June 1944 made in the said suit take possession of the 4/21 part or share of the said premises allotted to her .........'
After these illuminating recitals, necessity proves itself. An undivided 4/21st part has to be divided, as directed by the Commissioner for partition, and has to be rendered viable, by making the lot allotted, separate and independent. More, Nandarani has entered into possession of that which is undivided, but has to be divided so. The plaint, by its averment in the 7th paragraph, admits the gist of all this. Such alteration and addition, to make the lot separate and independent, does need money, and not a little money at that. Thus, the note of urgency is plain to be seen. So, much more than necessity, urgent necessity, proves itself. And 'the touchstone of the authority is necessity', to use the language of Pontifex J. quoted by Lord Davey in Sham Sunder Lal v. Achhan Kunwar, (1898) 25 Ind App 183 at p. 192.
59. Another answer is furnished by the evidence of Naresh Chandra Majumdar, the sole witness of L.I.C. an employee then of India Provident Co. Ltd. deputed by the secretary of the company, he inspects the particular house, that is, '116', --the house to be mortgaged --, sees its condition ; whether it is falling down or not. whether it requires any repair or not: and reports verbally what he sees, both to the secretary and the accountant. So he does before the company sanctions the loan. Such are the facts elicited partly on cross-examination of this witness and partly in answer to Court (qq. 274-301 and 315). The application for loan is rested on the allegation, as Maiumdar says, that the house is falling down. And he inspects the house to check it: whether or no it is really falling down; whether or no it does need repairs. In the course of hisinspection, he sees the condition of the house which is old and very bad requiring repairs (qq. 315 & 316). In so far as such oral evidence refers to a fact which, could be seen, it is the evidence of Majumdar, a witness, who says he saw it. It is therefore, primary evidence within the meaning of Section 60 of the Evidence Act 1 of 1872. But in so far as he says that the object of the loan was to meet the expenses for repairs and additional constructions, plainly it is hearsay, just what Mr. Sinha contends, and rightly too because, as the witness admits, the secretary of the company, not a witness, had told him so (qq. 319 & 320 read with qq. 317 & 318).
60. Excise what is hearsay. Still what remain as admissible evidence, and good evidence at that, are--
A. The condition of the building, an old one, is very bad and does need repairs.
B. The 4/21st undivided share, converted into lot A. has to be made separate and independent.
61. Add to this a common-sense proposition that an old house, made the subject-matter of a trust-deed in 1932 in its undivided share, cannot but need repairs, alterations and additions, some fourteen years later, when it takes a new garb in the form of a divided share, to be partitioned, and in fact partitioned, by metes and bounds, as stated in paragraph 7 of the plaint. Not to do this little is not to preserve the trust-property, but to destroy it, or to put it on the path to a euro destruction.
62. The conclusion, therefore, follows that Nandarani, backed by the written approval of her husband Moti Lall, had the requisite authority, in terms of the original instrument of trust, unamended by the rectification-deed, no less in terms of Section 36 of the Trusts Act 2 of 1882, to enter into the two mortgages she did, unless, of course, there id anything to the contrary. Mr. Sinha contends that there is more than one thing to the contrary. What such things are may now be examined one by one.
63. The onus of proof of necessity, it, is said, and rightly again, is on L.I.C., the statutory successor of the mortgage company, out to keep its security intact That appears to be settled law now, though Mr. Sinha has been good enough to refer me to the Sham Sunder Lal case. 1898-25 Ind App 183 on the point, a case, which rests on the restrictions on a Hindu widow's powers of alienation in olden days. But another law equally well settled is that when the relevant facts are before the Court, all that remains for decision is what inference should be drawn from them, and the debate on onus is rendered purely academical as held by Sir Lawrence Jenkins in Seturatnam Aiyar v. Venkatachala Gounden, 47 Ind App 76 --25 Cal WN 485 = ILR 43 Mad 567 = (AIR 1920 PC 67) and by Mr. Ameer Ali in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi, (1922) 49 Ind App 286=27 Cal WN 245 = ILR 45 Mad 586 = (AIR 1922 PC 292). In the case on hand, the relevant facts are those tabulated in paragraphs 60 and 61 ante: (i) the very bad condition of the old building needing repairs after a long lapse of time and (ii) the inevitability of alterations and additions in making the divided 4/21st share into a separate and independent unit. And the only reasonable inference a prudent man can draw from these facts, indisputable, if not undisputed, is that the trustee Nandarani's necessity of the money raised by loans, to preserve the trust-property and to make it viable, appears to be genuine. And the fact that India Provident Co., Ltd., whose mantle has fallen upon L.I.C., did make inquiries is amply borne out by Majumdar's evidence, no less, but much more, by the recitals In the mortgage-deed itself, traversing the entire history as to how Nandarani came by what she was mortgaging, and what for: to make lot A an independent unit. Certainly, all this shows the result of proper and bona fide inquiry as to the existence of necessity in fact.
64. Indeed, upon all that goes before, the onus cannot show its head here. To use the language of Lord Dunedin in Robins v. National Trust Co., Ltd. 1927 AC 515:
'..................... onus as a determiningfactor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not further be considered.' No question of proing and conning the evidence arises here. The evidence is such that there can be one and only one conclusion : existence of necessity in fact of the trustee Nandarani established by proper inquiry, but for which the mortgagor would not have recited all she did in the mortgage-deed. And it is a determinate conclusion. Why the debate then as to onus?
65. The contention then is that the question of repair is beyond pleadings, outside which I must not go. In support of a contention as this, reference has been made to Kanda v Waghu, AIR 1950 PC 68, Troian and Co. v. Rm. N. N. Nagappa Chettiar, : 4SCR789 . Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31 and S. N. Ranade v. Union of India, : 1SCR885 , emphasizing the importance of pleadings, beyond which the parties cannot be allowed to travel, so as to make out a new case wholly inconsistent, therewith. Nobody denies the salutary! rule that the case pleaded has to be proved and found. But it is not an Inflexible rule. To do justice between the parties, the pleadings are sometimes departed from. On a topic as this the case that at once conies to one's mind is Firm Sriniwas Ram Kumar v. Mahabir Prasad, : 2SCR277 , where a suit for, specific performance of a contract simpliciter was decreed for recovery of Rupees 30,000, on the admission of the defendants that they did take a loan of Rs. 30,000, though the case pleaded by the plaintiff was not a case of a loan at all. Or take the case of Bhagawati Prasad v. Chandanmaul, : 2SCR286 , where distinguishing, amongst others, the Trojan and Co, case, : 4SCR789 it is held that the formal requirement of pleadings can be relaxed, if two tests are satisfied. One, the plea is in substance in issue. Two, both parties have had opportunity to lead evidence thereon. There are other cases too to that end, such as Rani Chandra Kunwar v. Narpat Singh, (1907) 34 Ind App 27, where both parties go to trial on the plea that the plaintiff was given away in adoption, and, therefore, not entitled to inherit, though nothing like it is in the pleadings, and Nagubal Animal v. B. Shama Rao, : 1SCR451 , where both parties go to trial with full knowledge that the sale being hit by lis pendens is in fact in issue, though no specific plea to that end is in pleadings and necessarily, therefore, no specific Issue is there too either.
66. Such then is the law laid down on pleadings and permissible variations therefrom. But are the pleadings here as bad as that? By paragraph 9 of the plaint. It is pleaded inter alia that India Provident Co., Ltd, took the mortgage with notice of absence of legal necessity and of contravention of the deed of trust. By paragraph 7 of the written statement, L.I.C. denies contravention of the deed of trust and absence of legal necessity. Repairs, alterations and additions do come under legal necessity. Matters of evidence, they have not to be pleaded: Order 6, Rule 2, of the Procedure Code (5 of 1908).
67. A word about issues. In view of such pleadings, I fix a comprehensive Issue, issue No. 3, raising the question of execution of the two mortgages in contravention of the deed of trust. It may pertinently be asked why I fix issues when Law J. completed hearing the evidence. Issues first, evidence next--is the mandate of Order 14, Rule 1, Sub-rule (5), of the Procedure Code. Opening of the case over, before me, I search for the issues fixed by Law J. But I do not get any. Only then I am invited to strike the issues, which Ido. In the circumstances of the case, the order has been changed: evidence first, issues next, so far as the hearing before me is concerned.
68. Even taking a very strict view of the matter, non-mention of repairs etc. In the pleadings cannot lead the plaintiffs anywhere. Because, under Order 14, Rule 3, of the Procedure Code, which, by virtue of Order 49, Rule 3 ibid., is not excluded from this Court, in the exercise of its ordinary original civil jurisdiction: just the jurisdiction I am exercising, the Court is not confined to pleadings only, in framing issues. It may draw upon the contents of documents produced by either party; Order 14, Rule 3, Clause (c) and Snow White Food Product, Ltd. v. Sohanlal Bagla, : AIR1964Cal209 , if I may, without impropriety, refer to my decision on the point. And there are documents, such as the mortgage-deed of November 29, 1946, exhibit 1, and the letter dated February 3, 1948, over the signature of Nandarani, soliciting a loan for a further sum of Rs. 5,000, for repairs etc., as the previous loan of Rs. 25,000 has been spent in payment of such liabilities and costs--a letter on the left hand corner of which Secretary I.B. Sen recorded on February 21, 1948, sanction of the loan solicited, exhibit 4-a. So a specific issue on repairs could have been there on the foot of such documents, even though the pleadings do not mention repairs. But it is not there in form. All the same it has been there in substance throughout the trial. More, both parties had opportunity to lead evidence on repairs, on which L.I.C.'s witness Majumdar is cross-examined at length. And certainly the case of repairs is not wholly inconsistent with the case of legal necessity made and denied in pleadings, but does form part of it, and is so consistent with it. So, the ratio of the latter class of cases, listed in paragraph 65, applies.
69. It is then contended that the 'absolute discretion' conferred on the trustee for repairs is circumscribed by the source which consists of rents, issues and profits arising from the trust-estate. Where then, it is asked is the power of alienation by mortgage? The instrument of trust makes provisions in the following order:
First, payment of municipal taxes, other taxes and outgoings.
Second, costs of necessary repairs, if any.
Third, 'subject as aforesaid, upon trust, to pay or defray out of the rents, issues and profits arising or derived therefrom all the expenses for the maintenance, residence' etc., catalogued in paragraph 27 ante.
70. Now, what rents, issues, and profits will arise from the 4/21st share of '116' if, after partition and allotment of lot A to Nandarani, it is not made viable as an independent unit? 'Viability has, therefore, to be there as of necessity. That means money. Neither Rs. 160 a month (which appears to be the correct figure) nor Rs. 1100/1200 a month (which appears to be a figure inflated by Dalim Kumar who was a lad of fourteen years of age in 1946) can make lot A what it must be: a separate and independent unit. So, the implied discretionary power of the trustee to do what she has done is plainly there, reinforced by the absolute discretion (which means nothing short of that: absolute discretion) conferred by the instrument. Let it be said at the risk of repetition that not to do, in that situation after allotment of lot A, what the trustee does, is to make sure that such valuable trust-property goes to pieces.
71. The fact that the question of repairs has not been put to Dalim Kumar is a made a point of too. But as one of the plaintiffs he has had full notice beforehand of this topic of repairs revealed by the documents referred to above. It is, therefore, hardly necessary to waste time in putting questions to him upon it; the more so, as at or about that time he was no more than a lad of fourteen years of age, and can only know next to nothing on a matter as this.
72. Exhibit 4-a, evincing the sanction of a loan for a further sum of Rs. 5,000, on February 21, 1948, and that too for repairs etc., is stigmatised as a fact 'after the event', that is, after the big loan of Rs. 25,000 on November 29, 1946, by a mortgage-deed of even date, exhibit 1, with the approval dated May 12, 1946, exhibit 3, of Moti Lall for such loan. That, in my judgment, is taking too narrow a view of the matter. Moti Lall Sain's letter bearing date May 12, 1946 exhibit 3, authorizing Nandarani to raise a loan of Rs. 25,000, by mortgage, the mortgage-deed bearing date November 29, 1946, exhibit 1, clearly showing the reason for such a loan (1), this letter of Nandarani bearing date February 3, 1948, the left-hand corner of which bears the sanction dated February 21, 1948, for the further loan of Rs. 5,000, for completion of repairs, and the deed of further charge bearing date January 19, 1949, exhibit 2, must be read together. Once that is done, --and to that is added the evidence of Majumdar, in so far as it is not struck by hearsay,--there can be no escape from the conclusion that both the loans were taken for repairs, additions and alterations, inevitable in the circumstances. The only thing that creates a little difficulty is that the letter of Nandarani bearing date February 3, 1942, upon which the sanction of another loan, exhibit 4-a, for Rs. 5,000 is recorded, is not formally proved. Confronted with this letter over his mother's signature, Dalim Kumar is determined not to speak the truth (q. 497 et seq.) Majumdar Droves the sanction order only, exhibit 4-a fqq. 27-35). But under Section 39 of the Evidence Act (1 of 1872) I am entitled to look into Nandarani's letter, as I consider it necessary to the full understanding of the sanction of the loan, exhibit 4-a. That apart, I am entitled too to compare the signature of Nandarani on this letter with her signatures in the two mortgage-deeds, which get into evidence bv consent, the signature in the first mortgage having been proved too by Majumdar (qq. 10-22). Having done what I am entitled to do, under Section 73 of the Evidence Act, I am completely satisfied that the signature on this letter dated February 3, 1942, is the signature of the lady, who signed the two mortgage-deeds. It only remains for me to put on record that I have considered this of my own. Not that I have been addressed on this either by Mr. Sinha or, by Mr. Sen.
73. These are all the things, as Mr. Sinha contends, contrary to the conclusion I have indicated in paragraph 62. I am unable to accept any one of such contentions. I, therefore, reiterate mv conclusion recorded there: that even under the original instrument of trust, unamend-ed by the deed of rectification, Nandarani, the sole trustee to the estate of Modhoo Sooden Sam, had the power to enter Into the two impugned mortgages she did. And in view of the ground covered from paragraph 48 ante, I answer the second and the third issues as under:
2.(a)Did Nandarani Dassi haveany Power to execute the deedof mortgage, dated November 29.1946 ?
2.(a)Yes.2.(b)Were the aforesaid mortgage and thedeedoffurtherchargedatedJanuary 19, 1949,executed byNandaraniDassiwith the consent of her husbandMoti Lall Sain ?
2.(b)Yes (paragraphs 53 and 54).3.Was the execution of the mort-gagedated November29, 1946,and of the deed of further chargedatedJanuary19,1949.byNandarani Dassimadein con-travention of the deed of trustdated January 20, 1932, as alleg-ed in paragraphs 8 and 10 of theplaint ?3.No.
74. Now, barring the general issue on reliefs, the sixth one, remain two more issues, the fourth and the fifth ones, concerning limitation. The fourth is rested on what the plaintiffs allege in the eleventh paragraph of the plaint: that they came to know for the first time about the two mortgage-deeds on or about March 5. 1959. The fifth simply raises the question whether or no the suit is barred by limitation.
75. The suit I am seized of was instituted on July 3, 1959. It, therefore, did pend on January 1, 1964, -- the date of commencement of the new Limitation Act 36 of 1963. By virtue of Section 31, Clause (b), thereof, nothing in this Act (the new Limitation Act) shall affect any suit instituted before, and pending at, the commencement of the Act, that is, January 1, 1964. The new Limitation Act does not, therefore, govern this litigation. The old Limitation Act, 9 of 1908, does.
76. Now, the question is which article of the old Limitation Act rules the litigation on hand. Two articles have been pressed upon me: Articles 91 and 120. Article 91 prescribes three years' limitation for a suit to cancel or set aside an instrument, not otherwise provided for, terminus a quo being when the facts which entitled the plaintiff to have the instrument cancelled or set aside become known to him. Article 120 is the residuary article which prescribes six years' limitation for a suit for which no period of limitation is provided, terminus a quo being when the right to sue accrues.
77. Article 91 cannot be called in aid here. In substance, the suit on hand is a suit for a declaration that the two mortgage-deeds are void. So, Article 91 is not for such a suit. No doubt, there is a prayer too, so beloved of some of those who draft plaints, for an order that the two instruments be cancelled and delivered up. But it is a surplusage, which the plaintiffs do not need, once they get the declaration they pray the Court for. A Court is not a slave to the form of a plaint. It goes by substance. And, in substance, the suit is such that it repeals Article 91. If I may say so, this is plain common sense too. If the Court voids the instrument, what remains in it for the Court to cancel or set aside, and to deliver up, even though an otiose prayer to that end is there? If an instrument is void, it means that it is
'not only bad, but incurably bad'; it means that it is 'in law a nullity', adapting in the context here the language used by Lord Penning in Macfoy v. United Africa Co Ltd (1961) 3 All ER 1169. And still cancelling it?
78. On this consideration alone, I shall not invoke Article 91, in spite of an additional point Mr Sinha urges upon me, on the strength of Sanat Kumar Mitra v. Hem Chandra De, : AIR1961Cal411 , that this article is restricted to suits between parties to an instrument Not that this case does nol take the view I have taken in the preceding paragraph. It does, adding however, that Article 91 applies when the plaintiff is a party to an instrument. In theend, the decision is rested on Article 134-A. So, that, for which Mr. Sinha relies upon it, appears to be in the nature of an obiter. It is unnecessary to pursue the point further.
79. Article 120. I hold, rules the litigation. So, the suit as this must have to be instituted within six years from when the right to sue accrued. Now, when did the right to sue accrue here?
80. To answer the question just posed, one way is to remember the ages of the five plaintiffs, upon pleadings and evidence, at the date of the institution of the suit (July 3, 1959).
Here are they, with certain additional but ancillary points--
(1) (2) (3) (4)
(5) (6) Serial No Names in short and numbers of plaintiffs. Date or year of birth.* (a) pleadings. (b) evidence. Age on July 3,1959.When minority ceased or ceases.
1. Dalim, No.1. 26.9.1932. Para. 11 of the plaint. Birth Regr : Ext. A QQ. 15-17 to Dalim. 26 years odd months.26-9-1950. 2. Lakshmi Sona, No.2. 1939 or so. ' Q. 37 ibid. 20 years. 1957 or so. 3. Dinendra, No.3. 1941 or so. ' ' 18 years. 1959 or so. 4. Dlnapani, No.4. 1947 or so. ' Q. 10 Ibid. 12 years. 1965 or so. 5. KrishnaKumar, No.5. 1949 or so. ' Q. 11 Ibid. 10 years. 1967 or so.
81. A glance at this chart goes to show that no question of limitation can arise in the case of plaintiffs 2-5, that is to say, in case of plaintiffs other than No. 1, Dalim Kumar, in any view of the matter. Binapani and Krishna Kumar, the plaintiffs numbering 4 and 5, are minors at the date of the suit which they have raised by their next friend and brother Dalim Kumar. And this they are entitled to do, without coming on the edge of the law of limitation. The disability of Lakshmi Sona and Dinendra Kumar, the plaintiffs numbering 2 and 3, ceased in 1957 and 1959 respectively, and each would get six years time from then. -- when they became of age --, to file the suit As it is, they filed it on July 3, 1959, much earlier than the prescribed terminus ad quem. In vain, therefore, has the issue of limitation been raised against them.
82. The way I am going appears to be plain enough, free from any doubt or difficulty, resting as it does on the clear language used in Section 6. Sub-section (1) of the Limitation Act 9 of 1908. Still Mr. Sinha has been good enough to cite two authorities: Gangadhar Sarkar v. Khaja Abdul Ajij Nawab Salimulla Bahadur, (1909) 14 Cal WN 128 and Jawahir Singh v. Udai Parkash, AIR 1926 PC 16, the ratio of each, shorn of facts, which it is hardly necessary to state, being: that time cannot commence to run against the plaintiffs who are of nonage, run though it may against the adult ones. That is iust so here. Time may run against Dalim from September 26, 1950; not, however, against the rest from that date. Against them, time runs from when they come of age. That being so, limitation cannot hit them, as the dates depicted in the chart above go to show.
83. Dalim Kumar remains. Time commenced to run against him from September 26. 1950. when he had fust come of age and shaken off the disability on account of minority. So, unless there be some other consideration, the suit by him appears to be barred, instituted as it has been on July 3, 1959, far more than six years after September 26, 1950.
84. It is said, however, that very various considerations stand in the way of a conclusion as this. Here are they, under suitable headings.
I. Knowledge of Dalim Kumar for the first time on or about March 5, 1959, of the two mortgages.
85. This is just what is pleaded in paragraph 11 of the plaint. But the less said about the evidence of Dalim Kumar about his first-ever knowledge of the mortgage-deeds on or about March 5, 1959, as pleaded, the better. The type Dalim Kumar's evidence is like has been noticed in part (paragraph 28). True it is, 'false in one thing, false in everything', is neither law nor common sense, there being a slender foundation, if at all, for conferring on the doctrine of falsus in uno, falsus in omnibus the status of anything higher than a rule of caution: Per Kapoor, J. in Nisar Ali v. State of Uttar Pradesh, : 1957CriLJ550 which I notice on my own, and Bhowanipore Banking Corporation v. Sreemati Durgesh Nandini Dassi, , which Mr. Sinha cites, and where Lord Atkin emphasizes that the statement made by a witness of untruth on certain matters cannot be relied on, in other matters, unless supported by independent evidence. Equally true it is, as Mr. Sinha submits, relying on Sukha v. State of Rajasthan, : 1956CriLJ923 , that, as a Judge of facts, I have the right to disbelieve part of a witness's evidence and to believe part thereof. To the same effect is the other case Mr. Sinha relies upon, in support of his submission: the case of Gallu Sah v. State of Bihar, : 1958CriLJ1352 , where no violation of any rule of law nor even of prudence is seen in a judge of facts accepting the testimony of some of the witnesses against one and not accepting the same against another. I govern myself, as indeed I must, by these salutary principles. But the difficulty for Dalim Kumar is that this part of his evidence, claiming first-ever knowledge of the two impugned mortgages early in 1959, is so bad that it has only to be read in order to be rejected.
86-89. [The judgment deals with the evidence in detail, and proceeds.]
90. How Dalim Kumar tumbles in to his solicitor, Probir Chatterjee, son of P. C. Chatterjee, who is his mother's solicitor, appears to be an interesting study, though it is a futile exercise in all that falsehood can invent. Dalim Kumar, it will be recalled, gets into an altercation with Nandarani on receipt of that unseen (and perhaps unseeable) letter from Solicitor P. C. Chatterjee (Phulla Kumar Chatterjee). He sees the address of the solicitor of his mother in that letter. The address he sees is 6 Temple Chambers. The address of his solicitor, Probir Chatterjee, son of his mother's solicitor, is just that, a wooden partition intervening between the father's office and the son's.
To enter into either, one has to go through a common gate. Having come by the address (6 Temple Chambers) so, he makes a bee-line for Mr. Chatterjee, senior, with a view to getting to know what it is all about. He meets P. C. Chatterjee, not Phulla Chatterjee, as if they are different gentlemen, which they are not, and which Dalim Kumar admits too, a little late though. He asks Mr. Chatterjee, senior, if he can get him a solicitor. What Mr. Chatterjee, senior, says, asked so, is not evidence though it has gone down as evidence, if, of course, the truth of what he says is at issue. Or it may be treated as evidence too if the factum of the statement Mr. Chatterjee, senior, makes is only at issue, and not the truth thereof, as is the law laid down by the Judicial Committee of the Privy Council in Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 (970). And what does Mr. Chatterjee, senior, say, as Dalim Kumar attributes to him? 'Well', he says, 'there are so many solicitors over here. Seek one for you'. Dalim Kumar comes out of the senior's room, only to find on the board the name of Probir Chatterjee. In the end, he engages him, falling into an error, so natural for a witness of untruth that he is, about showing Solicitor Probir Chatterjee the instrument of trust and the deed of rectification, to which Dalim Kumar gives a new name: deed of new trust, gone down in evidence as 'deed of new trust'. Then, he corrects himself and says, he first visit to Mr. Chatterjee, junior, is without any documents which are shown to him during the second visit See qq. 314-348.
91. To scan such evidence is to be convinced that it is self-defeating. The reason behind evidence of this sort is not far to seek. Nandarani belongs to a camp hostile to that of her children, the litigating brothers and sisters, lest it be said, as has indeed been said and is bound to be said, that she is in league with her children and at the back of this litigation with a view to depriving LIC of the money she owes on the foot of the two mortgage instruments of undoubted authenticity. And what does Dalim Kumar himself say about the role of Nandarani in this suit? He cannot say if his mother is defending the suit (q. 282) -- a strange statement, because Nandarani goes undefended throughout, as Dalim Kumar himself admits (q. 283). Has this suit been brought with her consent? That is not so (q. 281). Is she supporting the claim of Dalim Kumar and his co-plaintiffs? Dalim Kumar answers : 'I cannot say anything to that effect': (q. 285). Why not? She, 'not a considerate lady', (q. 277), is on terms of enmity with Dalim Kumar and all She is 'very annoyed' too with each and every one of them, on the filing of this suit (q. 274). So, what is the difficulty on the part of Dalim Kumar saying whether or no his mother supports their claim in this suit? I see none.
92. On top of all that, the touchstone of common sense and probability be applied to the facts I see before me. If this suit succeeds, it means Nandarani's children to be gainers by Rs. 30,000, the consideration of the two mortgages, which, because of interest at 7% compound, mounts up to a little more than Rs. 50,000, at the time of LIC's suit, after credit of sums received towards interest. It, therefore, needs no imagination to see on which side her sympathy lies, no matter what fantastic and unbelievable things Dalim Kumar attributes to her. In sum, I reject the evidence of Dalim Kumar on all the points that go before and hold that the suggestions on behalf of LIC to the contrary (qq. 286 & 663-668, for examples), such as falsity of the so-called quarrel between Dalim Kumar and Nandarani, of Nandarani leaving the flat at Chittaranjan Avenue, of her not being at the back of this litigation etc., have the merit of a great probability in them, upon the whole of the evidence.
93. The story of Dalim Kumar meeting the expenses of this litigation and his personal expenses too out of an Imaginary sum of Rs. 6,000, supposed to have been given him by his father for the benefit of all, of which there is no evidence except his, stands self-condemned. Dalim Kumar is not a witness of the type whose uncorroborated evidence can be believed. And I need not dilate upon it.
94. In view of all that goes before, I cannot persuade myself to believe that Dalim Kumar came to know of the two mortgages for the first time on or about March 5, 1959.
II. Terminus a quo
95. What goes in the preceding paragraph is only a negative answer to Dalim Kumar's case on terminus a quo, the starting point of limitation. What is needed however is a positive finding as to when Dalim Kumar came to know for the first time about the two impugned mortgages. On that evidence furnishes no answer. Suspicion there may be here and there; but suspicion is no proof. For example, when Moti Lall Sain died on November 4, 1955, Dalim Kumar was some twenty-three years of age. Would not such a one, a grown-up, be taken into confidence by Moti Lall from before his death and told all about such liabilities? I do not know. I cannot assume so. I insist on proof. There is none. If you, wanting the suit to be struck down as time-barred, cannot specify a firm date for terminus a quo, you cannot ask the court to find the issue on limitation in your favour, unless it can be said: Why insist on Dalim Kumar's knowledge of the two impugned mortgages, when time starts running, not from the date of such knowledge (as in Article 91), but from the date when the right to sue accrues.
III. But when does the light to sue accrue?
96. A question as this is concluded by authorities Mr. Sinha cites -- to which I shall add one, and that of the Supreme Court. The source of all such authorities is Bolo v. Koklan where Sir Binod Mitter, delivering the judgment of the Board, lays down the law, in reference to Article 120, as under:
'There can be 'no light to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.'
No doubt, the right Dalim Kumar asserts in this suit accrued on the execution of the mortgage on November 29, 1946, (subject to his disability), as 'Mst. Koklan's right to the property arose on the death of Tarachand', her son, as provided for by the last will of her husband, Kanhaya Lal But here, as there, there was no clear and unequivocal threat to the rights of the suing party, until the institution of the suit by the defendant : 1922 there and January 28, 1958, here. Dalim Kumar was living as a member of a joint family, as Koklan was, Dalim Kumar not having been any the wiser about the mortgages and Koklan having been just so about the adverse claim to the moveables, her right to which was sought to be defeated as barred by limitation. In the circumstances, accrual of the right asserted in Dalim Kumar on November 29, 1946, put off until September 26, 1950, when he came of age and the legal disability was removed, and even infringement of such right behind his back, without his knowing anything about it, '116' continuing in the same way after the mortgages as before them, cannot be reckoned against him, on the high authority of this Privy Council decision.
97. Two other authorities Mr. Sinha cites: Anna Malai Chettiar v. A. M. K. C. T. Muthukaruppan Chettiar and Mohammad Umar v. Mohammad Ibrahim, AIR 1933 Lah 270, (a suit by worshippers for a declaration that a decree, rested on a mortgage of wakf property by one, not the owner thereof, the worshippers knowing nothing about it until the mortgagee sought to enforce his rights by sale) do no more than follow the law laid down by Sir Binod Mitter.
98. And the case I have in view is Mst. Rukhmabai v. Lala Laxminarayan, : 2SCR253 , where Subba Rao C. J. (then Subba Rao J.), speaking for the court, endorses Sir Binod Mitter's view of the law, and emphasizes that nothing short of a clear and unequivocal threat so as to compel the person so threatened to file a suit will do, and every threat cannot be so regarded. Do I, upon evidence, see any such threat to Dalim Kumar earlier than January 28, 1958, when LIC filed its suit (No. 136 of 1958) for enforcement of its security? I do not, It must, therefore, be found, as, indeed, it is found, that the suit, even by Dalim Kumar, is not barred by limitation.
99. The finding just come to, on limitation, makes it a profitless task to deal in detail with other points raised by Mr. Sinha on the same subiect But, in order to keep my record straight, the least I owe to Mr. Sinha is to record a summary of the points so urged, with such answers as commend themselves to me, so that it may not be said elsewhere that such points were not taken before me.
(i) No clear and definite knowledge of Dalim Kumar about the mortgages.
Some hints and clues reaching Dalim Kumar, and vigorously followed up by him, might have given him the knowledge of the two mortgages even more than six years before the institution of the present suit. But that is not the test. The test is that his clear and definite knowledge of the mortgages must be proved. But that has not been proved. Such is the contention I have dealt with in paragraph 95 et seq., to which I have little to add. But, comment is called for.
4. Did the plaintiffs come to know of the aforesaid mortgage dated November 29, 1946. and of the aforesaid deed of further charge dated January 19, 1949, on or about March 5, 1959, as alleged in, paragraph 11 of the plaint?
5. Is the plaintiffs' claim barred by limitation?
100. Only the general issue, the sixth one: 'What reliefs, if any, are the plaintiffs entitled to?' -- remains. My findings having been what they are, the plaintiffs are disentitled to any relief. I find so, when in support of such contention, reliance is placed upon Rohimbhoy Hubibhoy v. Turner, (1892) 20 Ind App 1, and Sm. Swarnamoyee Dasi v. Probodh Chandra Sarkar : AIR1933Cal253 , each being a case of fraud and of time beginning to run under Section 18 of the Limitation Act from the date of knowledge of such fraud. As Mr. Sen correctly points out, nothing like any fraud lurks here. More, fraud is not pleaded even. Necessarily, no particulars of fraud are here too. Any contention resting on fraud is, therefore, beneath my notice: Wallingford v. Mutual Society, (1880) 5 AC 685 and Bishundeo v. Seogeni, : 2SCR548 .
(ii) Absence of informed consent on the part of Dalim Kumar.
Rested on Article 1824, page 1054, of Halsbury's Laws of England, volume 38, 3rd edition, the question of Dalim Kumar's consent, informed or uninformed, can hardly arise here, because, upon evidence, I do not find any firm date earlier than January 28, 1958. and thereafter, to which his knowledge of the two mortgages can be attributed.
(iii) Section 23 of the Limitation Act, 1908.
This section cannot do any duty here. It cannot, because I find no wrong, far less a continuing wrong, on the part of Nandarani in entering into the two mortgages she did I have stated why; paragraphs 31, 32, 47, 52, 53, 54, 62 and 73, to mention only some of the important ones.
(iv) Section 68 of the Trusts Act.
I see no breach of trust. So this section, providing as it does for the liability of a beneficiary who ioins in breach of trust, does no duty either.
101. This exhausts all I have been addressed on about limitation. And, in view of all that goes before from paragraph 74, I answer the fourth and the fifth issues as under:
4. No (paragraphs 85-94).
5. No (paragraphs 75-83 & 95-98).
102. In the result, the suit fails and be dismissed with costs to the second defendant.