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Rabindra N. Das Vs. Santosh Kumar Mitra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1507 of 1965
Judge
Reported inAIR1975Cal381
ActsEvidence Act, 1872 - Sections 65, 74(2), 76 and 114; ;Trusts Act, 1882 - Section 3; ;Code of Civil Procedure (CPC) , 1908 - Section 11 - Order 22, Rule 5
AppellantRabindra N. Das
RespondentSantosh Kumar Mitra and ors.
Appellant AdvocateA.N. Ray, Adv.
Respondent AdvocateP.K. Roy and ;B.K. Chatterjee, Advs.
Cases ReferredArjun Singh v. Mohindra Kumar
Excerpt:
- ordersabyasachi mukharji, j. 1. this suit was originally instituted by one asit kumar sarkar and debasis sarkar claiming to be trustees in respect of premises no. 49b, sashi bhusan dey street, calcutta against the defendants. thereafter, rabindra nath das was substituted in the place and stead of the original plaintiffs. about the substitution i will deal later. the case of the plaintiff is that premises no. 49b, sashi bhusan dey street, calcutta, originally belonged to one smt. provabati biswas (since deceased) who during her lifetime by a deed of settlement and/or trust dated 2nd of july, 1946 had settled the said premises for the purposes and/or trust for the benefit of the persons and for the objects therein mentioned in the said deed of trust. about the said deed of trust i will also.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. This suit was originally instituted by one Asit Kumar Sarkar and Debasis Sarkar claiming to be trustees in respect of premises No. 49B, Sashi Bhusan Dey Street, Calcutta against the defendants. Thereafter, Rabindra Nath Das was substituted in the place and stead of the original plaintiffs. About the substitution I will deal later. The case of the plaintiff is that premises No. 49B, Sashi Bhusan Dey Street, Calcutta, originally belonged to one Smt. Provabati Biswas (since deceased) who during her lifetime by a deed of settlement and/or trust dated 2nd of July, 1946 had settled the said premises for the purposes and/or trust for the benefit of the persons and for the objects therein mentioned in the said deed of trust. About the said deed of trust I will also deal later on. According to the plaintiff the original trustees, viz., Smt. Provabati Biswas and Shri Pradyut Kumar Sarkar acted as trustees and gave effect to the said trust. The original defendants Nos. 1 and 2 are brothers of Smt. Provabati Biswas and at all material times the original defendant No. 1 was a tenant in respect of two rooms on the first floor of the premises under the said trustees and after the death of Smt. Provabati Biswas under the said Pradyut Kumar Sarkar, as the sole surviving trustee. On the 29-5-53 it is stated Suit. Provabati Biswas died intestate and since her death Pradyut Kumar Sarkar acted as the sole surviving trustee in respect of the said premises. It was further stated that upon the death of Smt. Provabati Biswas one Kshitish Chandra Mitra purported to claim title to the said premises by setting up a will of Smt. Provabati Biswas. It is further the case of the plaintiff that until 22nd July, 1964 the entire second floor of the premises had been in possession of one Biswarup Sengupta as a tenant under the trustees and after the death of Provabati Biswas under the said Pradyut Kumar Sarkar. The said Biswarup Sengupta according to the plaintiff duly surrendered the tenancy and vacated the said room on or about 30th May, 1959. Thereupon Kshitish Chandra Mitra objected to the right of the said Pradyut Kumar Sarkar to take possession of the second floor from the said Biswarup Sengupta and threatened to take forcible possession thereof and to institute the criminal proceedings against Pradyut Kumar Sarkar. Thereupon, an agreement was arrived at on or about 31st May, 1959 which has been set out in paragraph 9 of the plaint. A writing dated 31st May, 1959 has' also been annexed. The application for probate of the will referred to hereinbefore was contested by Pradyut Kumar Sarkar and the original defendant No. 1 Satyendra Kumar Mitra and upon contest the said testamentary suit was dismissed on 19th May, 1964 and probate of the will was refused. On 6th of November, 1956 the said Pradyut Kumar Sarkar as sole surviving trustee instituted a suit against the original defendant No. 1 in the Small Causes Court, Calcutta for ejectment of the original defendant and for recovery of the possession of the two rooms on the first floor of the said premises from the original defendant No. 1 of which the original defendant No. 1 had been a tenant. On the 15th February, 1959 a decree was passed by the Court of Small Causes Court, Calcutta in favour of said Pradyut Kumar Sarkar against the said original defendant No. 1 for delivery of vacant possession of the two rooms on the first floor of the said premises by the original defendant No. 1 to the said Pradyut Kumar Sarkar. Thereupon an application for execution of the said decree was made which is still pending according to the plaintiff. It is the case of the plaintiff that on or about 22nd July, 1964 the defendants Nos. 1, 2, 3 and 4 in collusion and conspiracy with each other wrongfully and illegally broke open the said padlock on the doors of the rooms of the second floor and trespassed therein and took forcible and illegal possession of the said second floor and were still continuing to be in such possession. The original defendant No. 1 Satyendra Kumar Mitra died intestate during the pendency of the suit. The present defendant No. 1 Santosh Kumar Mitra and the defendants Nos. 3, 4 and 5 are the sons of the original defendant No. 1. The defendant No. 6 is the daughter's daughter of the original defendant No. 1 and the defendant No. 7 is the husband of the defendant No. 6 and grand son-in-law of the original defendant No. 1. Pursuant to the provisions contained in the said deed of settlement according to the plaintiff the said Pradyut Kumar Sarkar in exercise of his power and/or right of nomination by a registered deed of appointment dated 21st November, 1964 duly nominated and/or appointed the original plaintiffs Asit Kumar Sarkar and Debasis Sarkar to be the successors to act as trustees in respect of the said premises. On or about 21st November i. e. on the date of the said nomination said Pradyut Kumar Sarkar died. Since the death of said Pradyut Kumar Sarkar the original plaintiffs according to the plaintiff became the trustees of the laid premises and again on the 28th April, 1965 the defendants in collusion and conspiracy with each other wrongfully and illegally trespassed into and took possession of the room on the 3rd floor of the premises according to the plaintiff by forcibly breaking open the said padlock. It is further stated that after the institution of the suit on the 6th January, 1969 Asit Kumar Sarkar died intestate without nominating and/or appointing anyone to act as trustee in his place and since his death the original plaintiff No. 2 Debasis Sarkar became the sole surviving trustee under the said Deed of Settlement. Thereafter by a registered deed of nomination and appointment dated 14th March, 1969 the original plaintiff No. 2 Debasis Sarkar appointed and/or nominated Dwijendra Nath Basu as trustee in his place and stead under the said deed of settlement and/or trust dated July 2, 1946 with immediate effect from the execution of the said deed. By an order dated 21st April, 1970, the death of Asit Kumar Sarkar was recorded and the said Dwijendra Nath Basu was brought on the record as the plaintiff by an order in this suit. Again on the 21st April, 1970 on the application of the said Dwijendra Nath Basu the heirs of the original defendant No. 1 Satyendra Kumar Mitra who died on the 30th October, 1969 were substituted. Thereafter, on the 28th December, 1968 (sic) the laid Dwijendra Nath Basu who was a Hindu governed by the Dayabhaga School of Hindu Law died intestate and unmarried, leaving him surviving only brother Dipak Kumar Basu and his only sister Preeti Rani Basu as his only heirs and legal representatives under the Hindu Succession Act, 1956 without nominating or appointing any trustee to the said trust estate. It is stated that by a registered deed of nomination and/or appointment of trustee dated 7th April, 1973 the said Dipak Kumar Basu and Smt. Preeti Rani Basu as the heirs and legal representatives of the said Dwijendra Nath Basu since deceased under the authority of law had appointed the plaintiff Rabindra Nath Das as a trustee to the said trust estate and trust premises and by virtue of the said appointment Rabindra Nath Das is acting as such trustee.

2. The plaintiff claims mesne profits and/or damages at the rate of Rs. 10/- per day for the 2nd floor and Rs. 2/- per day for the third floor until delivery of possession and claims possession of the said premises from the defendants.

3. There are four different sets of written statements on behalf of the defendants but the defence taken is more or less identical. Reference, therefore, can only be made to the written statement on behalf of the defendant No. 2. In the said written statement it has been denied that Provabati Biswas in her lifetime by a deed of settlement settled the premises as alleged. It is stated that from the records of the suit No. 1748 of 1953 which was instituted by Smt. Provabati Biswas it appeared that it was alleged by the said Smt. Provabati Biswas that she had requested Prodyut Kumar Sarkar to have a power of attorney for the purpose of recovering the rents, issues and profits on behalf of the said Provabati Biswas. On the 2nd July, 1946 the said Prodyut Kumar Sarkar fraudulently made or induced the said Provabati Biswas to sign a document on the representation that the same was a power of attorney. The said Provabati Biswas, it is alleged who had no knowledge of the English language, relied upon the said representation made bv Pradyut Kumar Sarkar and signed the document; and it was only in the beginning of January, 1953 that the said Provabati Biswas came to know for the first time of the aforesaid fraud practised upon her and thereupon instituted the suit. The defendants denied that the document described as deed of trust, copy whereof was annexed to the plaint, was ever intended to be acted upon. It was further denied that the trustees or any of them ever acted as trustees or gave effect to the said trust. It was further stated that the original defendants Nos. 1 and 2 were brothers of Smt. Provabati Biswas. It was denied that the defendant No. 1 was a tenant in respect of the two rooms in the first floor of the premises No. 49-B, Sashibhusan Dey Street or that after the death of Smt. Provabati Biswas, the original defendant No. 1 became a tenant under Pradyut Kumar Sarkar as a trustee or at all. It has been denied that after the death of Smt. Provabati Biswas, Pradyot Kumar Sarkar became the sole surviving trustee or could have acted as such. It has been stated that Biswarup Sengupta was a tenant of a portion of the said premises No. 49-B, Sashibhusan Dey Street under the original defendants Nos. 1 and 2 after the death of Sm. Provabati Biswas. It has been denied that Biswarup Sengupta was a tenant of the premises in respect of the second floor at any time under the trustee. It has been denied that Prodyot Kumar Sarkar ever took possession of the premises front Biswarup Sengupta as alleged in the plaint or could have taken possession. The alleged disputes between Kshitish Chandra Mitra and Prodyot Kumar Sarkar were also denied and the arrangement about the room which had been referred to in the plaint was also denied by the defendants. The defendants in particular denied about any writing dated 31st March, 1959 as alleged in the plaint. It was denied that Prodyot Kumar Sarkar was or could have been the sole surviving trustee or he had any right to institute any suit against the defendant No. 1 for recovery of possession or that the original defendant No. 1 was a tenant under Prodyot Kumar Sarkar. The allegation about the breaking open of the (sic) on the 22nd July, 1964 and taking possession on that date in collusion and conspiracy is also denied by the defendants. It is denied that Prodyct Kumar Sarkar had any power of authority or any right under the provisions of the said deed of trust, which is challenged by the defendants as fraudulent, illegal and void document or there could have been any nomination or appointment under the said alleged deed of trust. The quantum of mesne profits claimed is also denied and disputed.

4. As mentioned hereinbefore, after the institution of the suit on the 21st of April 1970 the original defendant No. 1 was substituted by Dwijendra Nath Basu as the plaintiff, and after his deatk without any appointment, by virtue of the appointment made by Dipak Kumar Basu and Priti Rani Basu, the present plaintiff was substituted by an order made by A. K. Sarkar, J. on 3rd September, 1973. The said order of Sarkar, J. is the subject-matter of an appeal. I would refer to this aspect of the matter when dealing with the issues raised in this suit. In short, there-fore, the two questions that arise for determination in this suit are, namely, whether the plaintiff has the legal title over the premises No. 49-B, Sashibhusan Dey Street to act as a trustee and claim possession in respect thereof; and secondly, whether the present plaintiff has been properly appointed. If these two issues are determined, then the defendants' possession, in my opinion, in view of the pleadings and the evidence adduced in this case would be wrongful, because if the plaintiff is the lawful owner of the premises in question and as the defendants are not claiming right or possesses either by virtue of any leave or licence of the lawful owner or by virtue of an agreement for tenancy, their possession and occupation would be unlawful and they would be liable to deliver no possession to the lawful owner. On the pleadings, however, the following issues were settled:

1. Did Prodyot Kumar Sarkar become a trustee by the document dated the 2nd July, 1946 executed by Sm. Provabati Biswas?

2. Did the said Provabati Biswas or Prodyot Kumar Sarkar act as trustees or give effect to the said alleged trust as claimed in paragraph 1 of the plaint?

3. Did Prodyot Kumar Sarkar take possession of the 2nd floor of the said premises as alleged in paragraph 7 of the plaint?

4. WAS there any agreement or arrangement as alleged in paragraph 9 of the plaint?

5. Did the defendants Nos. 1, 2, 3 and 4 trespass into and take forcible and illegal possession of the 2nd floor of the said premises as alleged in paragraph 17 of the plaint?

6. Was the purported nomination or appointment of his successors by the said Prodyot Kumar Sarkar as alleged in paragraph 21 of the plaint valid and legal?

7. Was the nomination and/or appointment of Dwijendra Nath Basu by Debasish Sarkar as trustee valid or lawful?

8. Is the present plaintiff a lawfully and validly appointed trustee of the said purported trust?

9. Are the defendants the lawful owners of the premises No. 49-B, Sashibhusan Dey Street, Calcutta? 10. To what relief, if any, is the plaintiff entitled?

5. I propose to deal with issues Nos. 1 6, 7 and 8 together because these, in my opinion, are the most material issues in this case and would be decisive of the questions involved in this suit. The first issue, therefore, that requires consideration is whether Prodyot Kumar Sarkar became a trustee by the document dated 2nd July, 1946. The execution of a document on that date by Sm. Provabati Biswas is not denied. But it has been alleged by the defendants that the said document had been executed by Provabati Biswas without knowing the purport thereof and was produced fraudulently. The onus is entirely on the defendants on this aspect of the matter. No evidence on this issue was adduced by the defendants to establish that the said document had been procured fraudulently or was executed without understanding the purport thereof. The next questions are: what is the document that was executed by Sm. Provabati Biswas, and what is the effect thereof. The plaintiff has annexed a copy of the said document. In dealing with the said copy annexed with the plaint, the defendants have averred as follows-- 'The defendant denies that the document, copy whereof has been annexed to the plaint, was ever intended to be acted upon.' Therefore, it appears to me that the defendants were not really denying that the copy was a correct copy of the document executed by Sm. Provabati Biswas. The defendants' contention was that the document was never intended to be acted upon. On behalf of the plaintiff a certified copy of the said document has been tendered in evidence and marked as Ext H. The said document was a registered document and this is a certified copy of the said registered document duty certified by the Registrar of Assurance. The said document is also P. D. 1. The question therefore, arises, whether this certified copy can be relied upon or can be admitted in evidence. My attention was drawn to Section 74 Sub-section (2) of the Evidence Act. Sub-section (2) of Section 74 provides what are the public documents and Section 76 permits certified copies of public documents to be admissible in evidence. The question, therefore, is whether the deed of trust in the instant case could be described as a private document of which public records are kept. In view of the observations of the judicial committee in the decision in the cases of Gopal Das v. Sri Thakurji, (AIR 1943 PC 83 at p. 87) and in view of the decision in the case of Krishna Kishori Chowdharani v. Kishori Lal Roy, ((1886) 14 Ind App 71 (PC) at p. 74) in my opinion, it cannot be said that the Ex. H, a private deed of trust which has been registered, is a private document of which public record is required to be kept and, therefore, as such it cannot be, admissible under Section 76 of the Evidence Act As the Judicial Committee noted the original had to be returned to the party concerned.

6. The next question is whether under Section 65(c) of the Evidence Act evidence has been given to make the certified copy admissible in this case. Section 65(c) of the Evidence Act provides that secondary evidence might be given of the existence, condition or contents of a document in a case where the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. It is, therefore, necessary to refer to the relevant evidence on this point. One Jagadish Chandra Sil gave evidence on behalf of the plaintiff. In answer to question No. 3 he stated that he was a pleader and he did some work in connection with the execution of the deed of trust on behalf of Sm. Provabati Biswas and also had filed many suits in the Small Causes Court on her behalf. He was shown the certified copy of the trust deed dated 2nd July, and in answer to Q. 4 he stated that he had prepared the trust tleed in the year 1946. In answer to Q. 10 he had stated that as far as he could recollect he had collected the original deed from the Registration office and handed the same over to her. In cross-examination he was asked whether he had the draft with him and he could not say that the draft was with him. He further stated in answer to Q. 15 that he was not in a position to say whether the document that was shown to him was a correct reproduction of the draft. He reiterated the same position in answer to Q. 16. Rabindra Nath Das, the present trustee, also gave evidence about the loss of the original in answer to Questions 8 to 11 and in answer to Questions 102 to 105 and again in Questions 150 to 152. In answer to Q. 11 the present plaintiff has stated that he personally went to Debashis and also to his friend Asit and enquired from them about the original deed and they had told him that the original deed was in their custody but they had lost it. He was asked in Q. 105 as to when for the first time he came to know of the Ext. H and he stated -- when he became a trustee. It appears that Asit died on 5th January, 1969 and Debasish is still alive. Counsel for the defendant criticises strongly that Debasis was not called and it was urged that it was improbable that Asit would have discussed about Ex. H with Rabindra Nath Das before he had become a trustee. The question in these circumstances, is, whether there is sufficient cogent evidence to admit the certified copy of the original deed of settlement. In this connection reliance was placed on several decisions, namely :

(1870) 14 Moo Ind App 453 (PC), (Ram Gopal Roy v. Gordon Stuart & Co.); AIR 1958 Andh Pra 418, (Ananta Raghuram v. Rajah Bommadevara); : AIR1968Cal532 , (M/s. Parekh Brothers v. Kartick Chandra Saha); : AIR1966Cal13 , (Biswanath Agarwalla v. Sm. Dhapu Debi); : AIR1959AP568 , (Smt. Bobba Suramma v. Smt. Peddireddi Chandramma); AIR 1946 PC 24, (Anand Behari Lal v. Dinshaw & Co. Bankers Ltd., Lucknow).

Now in order to admit secondary evidence in proof of a document of this nature it is important to bear in mind the nature of the document, the evidence about the search, the evidence about the enquiries made and the evidence about the loss of the original. In this case it is undisputed that the deed of trust which was executed was also registered. That point is not controverted. It is further apparent from the evidence of Jagadish Chandra Sil that he had the document registered. Ex. H is a certified copy issued by the Registrar of Assurance of the said deed. The fact that on that date 2nd July, 1946 a deed was executed cannot also now be disputed and it is apparent from the conduct of Sm. Provabati Biswas herself in instituting a suit challenging the execution of the said document. It is nobody's case that any other deed or document had been executed on that date. In the background of the aforesaid facts I am of the opinion that on the presumption of regularity under Section 114(e) of the Evidence Act the certified copy issued by the Registrar of Assurance should be accepted as the correct copy of the deed executed on the 2nd July, 1946. If that is so, then the evidence about the loss of the original will have to be adjudged in the light of the factors noted hereinbefore and on a consideration of all the facts and circumstances, I am of the opinion, that this certified copy should be admitted in the evidence as a copy of the deed of 2nd July, 1946.

7. The next question, therefore, is what is the effect of the said deed. In view of the controversy it is necessary for me to refer to the relevant portions of the said deed. The said deed begins by stating :

'This deed of settlement made this second day of July of the year one thousand Nine hundred and fortysix between Sreematy Provabati Biswas widow of Nripendra Krishna Biswas, deceased, by caste Kayastha, by religion Hindu, by occupation landlady, at present residing at 49B, Sashi Bhusan De Street in the town of Calcutta, hereinafter called the Settlor, which expression shall unless repugnant to the context include her heirs, successors and legal representatives of the one part the said Sreematy Provabati Biswas widow of Nripendra Krishna Biswas, deceased, hereinafter called the first trustee. Prodyot Kumar Sircar son of Charu Chandra Sirkar, by caste Kayastha, by religion Hindu, by profession merchant at present residing at No. 10, Thakurdas Palit Lane in the town of Calcutta, hereinafter called the second trustee, the expression trustee shall unless excluded by or repugnant to the context, shall include her or his or their successor or successors in office of the other part.'

Thereafter the deed recites the different clauses wherein sometimes Prodyot Kumar Sarkar has been referred to as a 'second trustee'. The deed then recites as follows :

'* * * (4th page) the said trust premises with all their appertenances rights and privileges unto and to the use of the said trustees upon trust that the said trustees shall stand possessed pf the said trust premises upon, the trust following that is to say during the lifetime of the settlor out of the income, rents, issues and profits of the said trust premises to pay and discharge all Municipal rates and taxes revenue and other outgoings that may from time to time be imposed and enforced upon be payable in respect of the said trust premises, secondly to carry out and execute all necessary repairs make such additions and alterations as are necessary to keep the said properties in proper and tenantable condition, thirdly to arrange for and to bear the costs of residence and maintenance of the settlor herself and pay costs of all religious social and customary needs of her family and fourthly to pay Rs. 5/- in every month to Hindu distressed widows and fifthly to pay to the settlor during her lifetime the balance and the residue of the said income, rents issues and profits for her absolute use and benefit and This Indenture further witnesseth that trustees jointly or separately will be entitled to settle or evict tenants and realise rents from tenants and other issues and properties and give valid discharge of the same but the second trustee will not be able to do any act which is expressly forbidden by first trustee (settlor) and this Indenture further witnesseth that after the death of the settlor all necessary costs and expenses for the funeral and sradh ceremony of the settlor (5th page) are to be paid by the second trustee in charge of the trust premises from the income of the trust properties and after paying those costs and expenses and subject to the trust hereby created and to the charges and payments provided for herein the surviving trustee for the time being of these presents shall hold or stand possessed of the said trust premises for charitable purposes that is to say after meeting the costs and expenses mentioned on the first and second items for payment of taxes revenue and other necessary and compulsory outgoings and the costs of repairs etc., the balance and residue of the income, rents, issues and profits of the trust premises will be spent by the surviving trustee in the following way viz., the surviving trustee will have the right to draw from the residue of the income Rs. 20/- per month for his personal expenses for which he will not be accountable to any person the residue after such payment will be spent by the surviving trustee for helping Hindu distressed widows or children by granting them monthly or occasional help or oilier charitable purposes. This Indenture further witnesseth that if during the lifetime of the settlor the second trustee dies or expresses his intention in writng not to act then and only in that case Benimadhab Mitra, son of Satyendra Kumar Mitra by caste Kayastha, by religion Hindu, by occupation student at present residing at Barukhali, P. O. Barukhali District Dacca will be appointed as the Joint trustee * * * (6th page).'

8. The argument on behalf of the defendants, is, that the right of Prodyot Kumar Sarkar to name the successor was dependent upon he being the surviving trustee of the settlor and he had the right to nominate only one trustee by the use of the expression 'named as successor' in singular. The priniciples upon which the deed or a document of this nature has to be construed are well settled. These are firstly, the entirety of the document must be read as a whole; secondly, the document must be so read as to give effect to the predominant intention of the settlor or maker of the document; thirdly, the document must be construed in such a manner as to make it workable and make it operative. Bearing the aforesaid principles in mind we have to remember that the expression trustee or trustees have been used in this case meaning his or their successors in office unless such expression was repugnant to the context. It is true that the expression 'surviving trustee' is not a happy expression in the sense that thereby it means one who survives the settlor but the right has been given after the settlor. In my opinion, the expression surviving trustee means the trustee who outlives the settlor and acts as trustee after the death of the settlor. In that light, in my opinion, it would not be proper to restrict the right of nomination where the expression trustee has been defined to mean his heirs or successors. In that view of the matter, I am unable to accept the contention that Prodyot Kumar Sarkar was not competent to nominate Ashis Kumar Sarkar or Debasis Sarkar jointly as trustees for the execution of the deed dated the 21st November, 1964. Counsel for the defendant made a point that the said deed had been executed on a date when Prodyot Kumar Sarkar died; but this point is of no consequence; this deed has been proved before me. It was witnessed by a solicitor of this court who has given evidence about the execution of this document. I find nothing in the record to hold that this document was not executed. After such appointment Asis Kumar Sirkar died without making any appointment. If that is so, then Debasis became the sole surviving trustee. Even if the contention of counsel for the defendant be accepted that Prodyot Kumar Sarkar had no right to appoint two trustees as successors the one being invalid, Debasis Sarkar was competent as such to act as trustee.

9. The next appointment was on the 14th March. 1969. Debasis Sarkar appointed Dwijendra Nath Basu. I am of the opinion, that the said appointment was valid in terms of the power given in the original deed dated the 2nd July, 1946. After the death of Dwijendra Nath Basu, Priti Rani and Dipak Kumar Basu as his heirs had appointed the present plaintiff as the trustee. The said appointment also is, in my opinion, in consonance with the power given in the deed dated 2nd July, 1946. In that view of the matter I am of the opinion that Prodyot Kumar Sarkar had been appointed validly and had become a trustee under the deed of 2nd July, 1946 and the nomination of successor of Prodyot Kumar Sarkar as stated in paragraph 21 was valid and legal. Therefore, nomination or appointment of Dwijendra Nath Basu by Debasis Sarkar was legal and valid and the appointment of plaintiff was legal and vlid. There is, however, one aspect of the matter and that is to say that after the death of Dwijendra Nath Basu as mentioned before, on an application made the present plaintiff was substituted by an order of A. K. Sarkar, J. It was therefore, contended on behalf of the plaintiff that after such order of A. K. Sarkar, J. issues Nos. 7 and 8 were no longer open for agitation in the suit. It was contended on the analogy of the decisions in the case of Umesh Chandra v. Memanga Chandra, 36 Cal WN 1138 = (AIR 1933 Cal 325) and in the case of Ram Parkash v. Shamkari, that this question was no longer open for determination in this suit. On the other hand, it was contended by counsel for the defendant on the analogy of the decisions in the case of Satyadhyan Ghosal v. Deorajin Debi, : [1960]3SCR590 and in the case of Arjun Singh v. Mohindra Kumar, : [1964]5SCR946 that an order for substitution being in the nature of an interlocutory order was not conclusive and binding. I am of the opinion that an order for substitution on death, under Order 22, Rule 5 of the Code of Civil Procedure, was not in the nature of interlocutory order. In the premises I am inclined to the view that after the order of A. K. Sarkar, J. this question is no longer open in this suit. In any event, in the view I have taken, I need not decide this question.

10. In the view I have taken, other issues are of no consequence, because as mentioned before, if the plaintiff is the lawful owner of premises No. 49B, Sasi Bhusan Dey Street and as the defendants have not set up any title, whether Prodyot Kumar Sarkar acted as trustee or not are not relevant for determination of the controversy in this case. Therefore, in my opinion, this issue need not be answered. The plaintiff, therefore, is clearly entitled to ask for possession.

11. The next important point is the claim for mesne profit. The plaintiff has claimed mesne profit at the rate of Rs. 250/-per month, but the basis of his evidence is rather unsatisfactory. On behalf of the defendants it was suggested in QQ. Nos. 146 to 149 to Rabindra Nath Das that the rental of the second floor would be Rs. 60/- per month and it was suggested that the mesne profit would be Rs. 60/- per month and of the room on the third floor is Rs. 15/- per month. I am of the opinion that the plaintiffs are entitled to mesne profit on the basis suggested by the defendants. It must be noted that so far as defendants Nos. 1 (a), 1 (b) and 1 (c) are concerned they have not resided at the aforesaid premises. Therefore, they cannot be liable for claim of mesne profit.

12. In the premises, there will be a decree in terms of prayers (a), (b) and (c) of the Plaint and a decree against defendants Nos. 2 to 7 for mesne profit at the rate of Rs. 60/- per month from 22nd July, 1964 for the second floor of premises No. 49B, Sashi Bhusan Dey Street until possession is given and Rs. 15/- per month in respect of the third floor room until delivery of possession is given from 28th April, 1965.

13. In view of the fact that the defendants are related to the original settlor, I direct that parties will pay and bear their own costs.

14. There will be a stay of operation of this order for four weeks.


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