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Bholanath Shaw Vs. Badrinath Shaw and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtKolkata High Court
Decided On
Case NumberSuit No. 1964 of 1968
Judge
Reported inAIR1974Cal292
ActsSuccession Act, 1925 - Section 211; ;Hindu Law
AppellantBholanath Shaw
RespondentBadrinath Shaw and ors.
Appellant AdvocateJ.N. Roy, Adv.
Respondent AdvocateAhin Chowdhury and ;P.K. Roy, Advs.
DispositionSuit dismissed
Cases ReferredSm. Raikishori Dassi v. The Official Trustee of West Bengal
Excerpt:
- .....the owner of the properties in suit. by a deed of trust dated august 2, 1946, he transferred the suit properties to himself as the sole trustee for the objects stated therein. the said deed, inter alia, provides that on his demise his wife sm. dhaneswari debi shall be the sole trustee for life and on her death his four sons shall be the joint trustees of the trust estate. it also provides that on his death dhaneswari shall be the sole shebait of the deity and after her death his sons shall be the shebaits of the deify. by a deed dated june 10, 1949 he transferred two immovable properties of the trust estate absolutely to the deity. he died on june, 1964 and since his death the defendant sm. dhaneswari has been acting as the sole trustee and the shebait. she has committed various.....
Judgment:
ORDER

Deb, J.

1. This suit was instituted with Leave under Clause 12 of the Letters Patent for administration of the trust estate comprised mainly of immovable properties all situate outside the territorial jurisdiction of the Original Side of this Court and for other reliefs including the removal of the defendant No. 1 from the office of the sole trustee and shebait and for appointment of the plaintiff in her place.

2. The case pleaded in the unamended plaint is shortly this: One Ram Bharas Shaw was the sole shebait of the defendant deity. He was also the owner of the properties in suit. By a Deed of Trust dated August 2, 1946, he transferred the suit properties to himself as the sole trustee for the objects stated therein. The said Deed, inter alia, provides that on his demise his wife Sm. Dhaneswari Debi shall be the sole trustee for life and on her death his four sons shall be the joint trustees of the trust estate. It also provides that on his death Dhaneswari shall be the sole shebait of the deity and after her death his sons shall be the shebaits of the deify. By a Deed dated June 10, 1949 he transferred two immovable properties of the trust estate absolutely to the deity. He died on June, 1964 and since his death the defendant Sm. Dhaneswari has been acting as the sole trustee and the shebait. She has committed various breaches of trust. She has also acted against the interests of the deity in relation to those two properties. The defendants are the sons and daughters of Ram Bharas. Those sons, except the defendant No. 3, have aided and abetted those wrongful acts of Dhaneswari in collusion and conspiracy with her. The plaintiff is the other son of Ram Bharas and hence he has filed this suit against them for the reliefs mentioned earlier.

3. The defendant No. 3 is supporting the plaintiff. His sisters did not appear at the trial. The contesting defendants in their written statements have denied the title of the deity in those two properties and have challenged the validity of the said transfer made by Ram Bharas in favour of the deity. They have also denied the allegations relating to those wrongful acts and have taken the pica that this Court has no jurisdiction to try this suit under clause 12 of the Charter as all the immovable properties are admittedly situated outside its territorial jurisdiction.

4. Dhaneswari died lite pendente. Thereafter, the plaint was amended by introducing various charges made against the contesting defendants and for their removal as trustees and shebaits and for appointment of the plaintiff in their place. The other defend-ants were also added as parties to the suit.

5. The learned Counsel for the respective parties have agreed to proceed with the trial on these two preliminary issues; Issues:

1. Is this a suit for land?

2. If so, has this Court any jurisdiction to try it?

6. It has been contended by the learned Counsel Mr. J.N. Roy, appearing for the plaintiff, and by Mr. P.K. Roy, the learned Counsel appearing for the deity, that this suit is not a suit for land because the plaintiff has claimed for administration of the trust estate. Their contention is that the prayer for removal of Dhaneswari and for appointment of the plaintiff as the sole trustee in her place are merely ancillary reliefs. Therefore, this Court has jurisdiction to try this suit. IN support of their contention, they have cited a Division Bench decision of this Court, in the case of Hem Chandra Dev v. Dhirendra Chandra Das, reported in : AIR1960Cal691 . It was a suit for administration of the estate of a deceased person and for appointment of a Receiver till the disposal of that suit. The only immovable property in that suit was situated outside the territorial jurisdiction of the District Court of Howrah where that suit was filed and it was held that it was not a suit for land.

7. They have also made these contententions. The estate of a deceased person is vested in his executor under Section 211 of the Indian Succession Act, 1925. The Court can remove the executor in an administration suit and can appoint an administrator in his place. On his removal the executor is divested of the estate which is vested in the administrator on his appointment. The trust estate is vested in the trustee. The Court can remove a trustee in an administration suit and can appoint a new trustee in his place. A trustee is divested of the estate by his removal and the estate is vested in the new trustee on his appointment. Hence, the removal of a trustee and an appointment of a new trustee in place of the removed trustee are ancillary matters in an administration suit and therefore this suit is not a suit for land.

8. Mr. Ahin Chowdhury, the learned Counsel appearing for some of the contesting defendants, on the other hand, has made these contentions. The title of the deity in those two immovable properties is directly involved in the suit. The plaintiff was not a trustee nor a shebait at the time this suit was filed by him. He has prayed for removal of Dhaneswari and has also prayed for his own appointment as the sole trustee and she-bait in her place. The trust estate vested in Dhaneswari. She was the legal owner of this estate. She was in exclusive possession of these properties. The plaintiff was not in possession of the trust estate. His object is to get control over the trust properties by his appointment and by the removal of Dhaneswari as the sole trustee. He has risked for removal of the contesting defendants from their offices by amending the plaint after the death of Dhaneswari for the same object.

9. Mr. Chowdhury placed strong reliance on the decision of our Court of Appeal in the case of The Delhi London Bank v. Wordie, reported in ILR (1875-1876) 1 Cal 249. That suit was filed in the Original Side of this Court. It was a suit for administration of a trust estate and for removal of the trustee and for appointment of a new trustee in his place. The immovable properties comprised in that trust estate were situated outside the local limits of the Original Side of this Court. It was held by the Court of Appeal, that this Court had no jurisdiction to try that suit because it was a suit for land. Hence, it has been contended by Mr. Chowdhury that this instant suit before me is also a suit for land and this Court has no jurisdiction to try it.

10. The immovable properties in suit are admittedly situated outside the territorial jurisdiction of this Court. There is no dispute that this Court shall have no jurisdiction to try this suit if it is a suit for land. Now, if any question affecting the title or possession or control over any immovable property or any right to or interest in it is directly involved in a suit it will be a suit for land is my reading of the decision of the Federal Court in the case of Moolji Jaithia and Co. v. The Khandesh Spinning and Weaving Mills Ltd., reported in AIR 1950 FC 83.

11. The nature of the suit is to be ascertained from the pleadings of the parties. The Court will look to the substance of the matter and not to the form in which the suit is framed. The issue arising out of the pleadings is of the highest importance for if any such question, as stated above, is directly involved in the issue it must necessarily follow that it is a suit for land.

12. It does not appear from the report that any such question was involved in Hemchandra's case : AIR1960Cal691 (supra). It was a simple suit for administration. There was no dispute regarding any right, title or interest in that immovable property nor its possession was even claimed. There was no prayer for the removal of the executor or for an appointment of an administrator in his place. The prayer for Receiver in that suit was in the nature of an interlocutory relief. And no interlocutory relief can determine the character of a suit. Had a Receiver been appointed his tenure of office would come to an end with the end of that suit and his appointment would have enured for the benefit of the executor because there was no prayer for his removal. In the case of P. Lakshmi Reddy v. L. Lakshmi Reddy, reported in : 1995(5)SCALE509 of the report, the Supreme Court has said: 'in law' possession of the Receiver 'is ultimately treated as possession of the successful party on the termination of the suit' provided, however, the successful party was in actual possession of the property prior to the appointment of the Receiver. Further Hemchandra's case was not decided on that prayer for appointment of the Receiver made in the plaint, and the Division Bench at p. 712 of the report said: 'We have come to the conclusion that the suit is not a suit for determination of any right to or interest in immovable property.' Therefore, Hemchandra's case is not an authority on the question involved before me.

13. The prayers for removal of Dhaneswari including the removal of the contesting defendants from their offices and for the appointment of the plaintiff in their place, in my opinion, are not ancillary reliefs as was contended before me. Further, their legal position cannot be equated with the legal position of an executor. It is true that under Section 211 of the Indian Succession Act, 1925, the estate of a deceased person is vested in his executor but the expression 'as such' used in that section is, in my opinion, leads to an irresistible conclusion that such vesting is only for the purpose of representation of the estate of the deceased person. But, no such qualification can be attached to the office of a trustee or a shebait because they are not the legal representative of the settlor.

14. A trustee is the legal owner off the trust property. Shebait is the owner of his shebaiti right is the decision of a Division Bench of this Court in L. P. A. No. 70 of 1973 (Sree Radha Gobinda Jew v. Sm. Kewala Devi Jaiswal vide Judgment dated 13-2-1974 (Cal)). The trusteeship and the shebaitship are properties even when no emoluments are attached to them is the decision of this Court in the case of Sm. Raikishori Dassi v. The Official Trustee of West Bengal, reported in : AIR1960Cal235 . Their offices and properties are blended together and on their removal they would be divested of their own proprietary interest including the properties of the trust and the defaulter estates. They will also be dispossessed from the trust and the debutter estates and shall have no control over them. Hence, I am unable to accept the contentions based on Section 211 of the Indian Succession Act, 1925 noted earlier.

15. Further, the decision of our Court of Appeal in the case of ILR (1875-1876) 1 Cal 249 (supra) is a direct authority on the question involved before me for in that case it was held that that suit was a suit for land because its purpose was to acquire 'title to or control over land within the meaning of Clause 12 of the Charter by removing the trustee and appointing a new trustee in his place.

16. In the case before me the plaintiff has prayed for removal of the defendants from their office of trusteeship and shebaitship and he has also prayed for his own appointment in their place. The trust estate comprised of immovable properties all situate outside the local limits of this Court. Further, the title of the deity in those two immovable properties has been questioned in the written statement of the contesting defendants which is not an ancillary question, but a question directly involved in the suit. Hence, in my opinion, this suit is a suit for land and therefore my answer to the issues are as follows : Issue No. 1 : Yes. Issue No. 2 : No.

17. In the premises, this action must fail and this suit is dismissed for want of jurisdiction. The parties will bear their own costs excepting that the costs of Mr. Misra, the Guardian-ad-litem of the defendant deity, shall be paid by Mr. Chowdhury's client out of the Trust estate as between attorney and client including the fees actually paid to Mr. P.K. Roy. The costs of Mr. Misra need not be taxed but shall be certified by Mr. N.C. Mitra, the Solicitor for the Government of West Bengal, and Mr. Chowdhury's client will pay those costs to Mr. Misra forthwith out of the Trust estate. The costs of Mr. Misra will be assessed and paid on the signed copy of the minute. I certify it to be a fit case for engaging two Counsel.


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