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HIGH COURT OF CALCUTTA
S. K. DUTTA
A. D. VEHVALWALA - Appellant
Versus
M. C. H. RUSTOMJI - Respondent
Suit No. 1891 of 1952
Decided On : April 2, 1965
TRUST - PRIVATE OR PUBLIC - ENDOWMENT - VALIDITY - BREACH OF TRUST - REMOVAL OF TRUSTEE - CONSENT DECREE - VALIDITY - JURISDICTION OF COURT - HINDU LAW - PARSEE LAW.
Fact of the Case:
The suit was filed for removal of the defendant from the office of trust created by or by virtue of indentures dated December 19, 1842, and June 6, 1919, appointment of new trustees, directions for accounts of and enquiries into the defendant's dealing with the trust properties, payment of the amount found due from him upon taking of such accounts and other reliefs. The plaintiff's case was that a trust was created by the indenture dated December 19, 1842, and by the indenture of the same date as alleged. The defendant denied that any trust was created by the alleged conveyance dated December 19, 1842, and by the indenture of the same date as alleged. The defendant also denied that he had committed breaches of the terms of the consent decree of any breaches of trust as alleged or at all.
Finding of the Court:
The Court held that the trust deed dated June 6, 1919, was void and a nullity. The Court also held that the endowment created originally before 1842 was a private trust. The Court further held that the trust created on December 19, 1842, was a private trust. The Court also held that the consent decree was void and a nullity. The Court also held that the defendant had committed breach of trust. However, the Court held that the defendant should not be removed from the office of trustee.
Issues: 1. WAS any trust created by the documents referred to in para 1 of the plaint? 2. If there was a trust, was it a private or a public trust? 3. Was the defendant committed any breaches of the trust and/or breaches of the consent decree on the grounds mentioned in para 5 of the plaint? 4. To what relief, if any, is the plaintiff entitled?
Ratio Decidendi: The Court held that the trust deed dated June 6, 1919, was void and a nullity as the heirs of Rustomji Cawasji, parties to the deed of June 6, 1919, could not create a trust of the properties of the endowment and the trust. The Court also held that the endowment created originally before 1842 was a private trust as the mere building of the fire temple did not create the endowment. The Court further held that the trust created on December 19, 1842, was a private trust as the words 'place of worship for Parsees' are, in the Court's opinion, only an explanation of the word 'agyaree'. The Court also held that the consent decree was void and a nullity as the parties are prima facie bound by a decree whether passed upon consent or on contest. The Court also held that the defendant had committed breach of trust as the keeping of moneys in his hands contrary to the express provision of the trust dated June 6, 1919, and consent decree and concealing the same from the company-trustee is also a breach of trust.
Final Decision: The suit was dismissed. The Official Receiver subject to his filing of accounts and payments of all costs, charges and expenses, if any, will stand discharged and the Official Receiver will make over to the plaintiff No. 4 Framji C. H. Rustomji and the plaintiff No. 5, defendant, and the plaintiffs Nos. 4 and 5 and the defendant will receive separately and distinctly the properties of the endowment which include the immoveable properties and moveable properties other than securities and likewise separately and distinctly the securities which are the balance of the sale proceeds of the trust properties covered by the deed dated December 19, 1842. They will keep the properties of the endowment and trust separately and manage the properties of the endowment in the same way and with the same right and obligation as the sebaits of a Hindu debattar do and the trust properties under the deed of trust dated of December 19, 1842, as the trustees thereof.
( 1 ) THE facts leading to this suit are as follows : One Rustomji Cawasji prior to 1842 built an Agyaree, fire temple, for the place of worship of the Parsees in Calcutta. The said temple stood on a large area of land where Rustomji Cawasji had built houses or rooms.
( 2 ) ON December 19, 1842, Rustomji Cawsasji conveyed the property known as Rustomji's bazaar lying at Beliaghata in the suburbs of Calcutta to his two sons Dadabhoy Rustomji and Maneckji Rustomji for a consideration of the sum of Company's Rs. 14,000. On the same day, i. e. on December 19, 1842, the said Dadabhoy Rustomjiand Maneckji sons of Rustomji Cawasji, conveyed the very same property, Rustomji's bazaar, toothier father Rustomji Cawasji for a consideration of Company's Rs. 10 in trust with the object: -from and out of the rents and profits of the bazaar hereditaments and premises to pay and disburse of and from the charges and expenses of Agyaree or the place of worship for Parsees built by the said Rustomji Cawasji and situate in Doomtallah in the town of Calcutta and (2) for or upon no other use, trust, intents and purposes whatsoever. It was provided also in that deed that Rustomji Cawasji should be the trustee during his life-time with power to nominate a new trustee or trustees, and upon his death it was further provided that his two sons would be the trustees with like power to appoint a new trustee or trustees and further upon the death of one of his sons, the heirs, executors and administrators of such survivor would be the trustees with like power to appoint one or more trustee or trustees. In 1852, Rustomji Cawasji died and upon his death Dadabhoy Rustomji and Maneckji Rustomji, his two sons, became the trustees. There were disputes between the two trustees. The disputes were referred to arbitration and in 1883 the Arbitrator made an Award. In 1890, Dadabhoy Rustomji died and Maneckji Rustomji commenced to act and became the sole trustee. In 1891, Maneckji Rustomji died without appointing any trustee. In these circumstances, in 1902, the then children of Maneckji and Dadabhoy, five in number, made a declaration of trust and/or made a trust in accordance with the terms of the said Award. Hirjibhoy Maneckji and Kaikhasroo Dadabhoy Rustomji, two of the then trustees, died. In 1919, the surviving three trustees appointed the three sons of Hirjibhoy Maneckji Rustomji as additional trustees. Therefore, in the result there were six trustees. On June 6, 1919, the said trustees made a declaration of trust and/or made a trust more or less in terms of the Award evidently because the said deed of declaration made on March 2, 1902, was lost.
( 3 ) IN 1920, one of the trustees Jamshedji Hirjibhoy Maneckji Rustomji died. In 1921, Cawasji Maneckji Rustomji, another trustee, died. He had nominated in writing his son-in-law Dinshaw Romer as trustee in his place. In 1923, there was a decree in the Bombay High Court directing the existing truss to execute a deed of appointment in favour of Dinshaw Romer. In 1924, Rustomji Hirjibhoy Maneckji Rustomji, one of the then trustees, resigned. In 1924, the then trustees Cursetji Hirjibhoy Maneckji Rustomji, Cawasji Dadabhoy Rustomji and Framji Dadabhoy Rustomji appointed dinshaw Romer as a trustee. In 1932, Rustomji Hirjibhoy Maneckji Rustomji died. In 1932, Framji Dadabhoy Rustomji died. In 1933, Cawasji Dadabhoy Rustomji died leaving only two surviving trustees, Cursetji Hirjibhoy Maneckji Rustomji and Dinshaw Romer. In 1934, the then three trustees mentioned above appointed in writing three other trustees Framji Cursetji Hirjibhoy Rustomji, originally the plaintiff No. 4, Maneckji Cursetji Hirjibhoy Rustomji, the defendant, and Khurshedji Cowasji Banaji as additional trustees. It is at this stage that the plaintiff No. 4 Framji C. H. Rustomji, who is the only plaintiff in the suit now, and the defendant Maneckji C. H. Rustomji, who is the only defendant in this suit, appeared in the scene. In 1939, Cursetji
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