1960 Supreme(Cal) 144

HIGH COURT OF CALCUTTA
P. C. Mallick
SANAT KUMAR MITRA - Appellant
Versus
HEM CHANDRA DEY - Respondent
Suit 2864  Of  1953
Decided On : JULY 1, 1960

A lease granted by trustees is invalid if it is not for the benefit of the trust and there is no legal necessity for the same.

Headnote:

TRUST - APPOINTMENT OF TRUSTEES - VALIDITY - CONDITIONS IN WILL - BREACH - EFFECT - LEASE BY TRUSTEES - VALIDITY - LEGAL NECESSITY - ENQUIRY - BURDEN OF PROOF - LIMITATION ACT (IX OF 1908), ARTS. 91, 120, 134A - APPLICABILITY.

Fact of the Case:

The plaintiff, a Hindu, instituted a representative suit for self and other members of the Hindu community interested in the trust created by the Will of Akshoy Kumar Ghosh deceased. The defendants Nos. 1 and 2 Hem Chandra Dey and Protap Narayan Bose were impleaded on the allegation that they were purporting to act as executors and trustees. Defendant no. 3 is Ashutosh Coomar in whose favour a lease was granted of one of the trust properties.

Finding of the Court:

1. The appointment of Hem Chandra Dey and Protap Narayan Bose as trustees was invalid as it was not made in accordance with the provisions of the Will. 2. The lease granted by the trustees was also invalid as it was not for the benefit of the trust and there was no legal necessity for the same. 3. The suit was not barred by limitation as Article 134A of the Limitation Act applied.

Issues: 1. Whether the appointment of Hem Chandra Dey and Protap Narayan Bose as trustees was valid. 2. Whether the lease granted by the trustees was valid. 3. Whether the suit was barred by limitation.

Ratio Decidendi: 1. The Will provided that in case of death or retirement of any of the executors and trustees or shebaits the surviving trustee or trustees shall appoint another competent person as a trustee in the place of the deceased trustee or trustees so retiring and such newly appointed trustees shall be vested with the trust and estate along with the then existing trusees and have all the rights and powers which the trustee in whose place he is so appointed had at the time of his death or retirement but under no circumstances the number of trustees shall be less than two for 3 consecutive months, provided however if the number of trustees falls short of the requisite number hereinbefore mentioned and if no appointment of a new trustee is made within the period aforesaid from the date of the death or retirement of any of the trustees. or in case all the executors and trustees herein named and hereby appointed renounce executorship and do not apply for probate of this Will within 8 months from the date of my death then and in any of such events happening the Official Trustee of Bengal shall become the executor and trustee of this my Will and sole trustee of the said debutter and charitable institution to be created and established as aforesaid in which case my heir or heirs for the time being shall be the shebait and perform the religious trusts only and he or they shall perform and carry out such trusts under the supervision of the said Official Trustee for the time being the said Official Trustee pay the amounts payable under this Will to the said shebait for the time being for expenses in connection with the religious trust only. 2. The executors were also trustees and stated as such in the testamentary instrument, the executors administered the estate so long as the estate remained unadministered and if there is a trust Created by the Will, they functioned as such trustees only after the estate is fully administered. 3. The Will provides that there should be a minimum of two executors and trustees to carry on the administration, though for the maximum period of three months a single executor and trustee has been empowered to act. 4. The instrument indicates that in such event the Official Trustee will become the trustee 5. The provisions of the religious part of the trust being performed by the heirs of the settlor, takes the instant case out of the provisions of Section 7 (5) of the Official Trustees Act and the said section is no impediment to the Official Trustee acting as trustee in the instant case. 6. Even if it is held that Section 7 (5) operates as a bar to the Official Trustee in acting as trustee under the instant trust, less than two trustees are incompetent in terms of the instrument to exercise the function of trustee for a period more than three months and as such Phani Ghose alone was competent in law to appoint Hem Chandra' as trustee. 7. The lease recites the order of the District Judge dated September 28, 1942, to raise a loan of Rs. 10,000/- on mortgage of premises No. 141/1, Cornwallis Street and further recites that pursuant to the order, equitable mortgage of premises No. 141/1, Cornwallis Street was effected. 8. The evidence of Ashutosh Kumar was very unsatisfactory. The evidence of Mr. J. R. Haldar, the attorney should have been tendered and the documentary evidence of the actual collections of rent at the time when the lease was granted should also have been produced. 9. The lessee may perhaps be entitled to be reimbursed of the money actually spent for the benefit of the estate. 10. The quorum or the minimum clause would be operative. 11. The suit, on the other hand, is to challenge the defendants' pretensions to a legal character and to right to property. Such a suit does not come under Section 42 of the Specific Relief Act. 12. The words used are 'to set aside a transaction'. It is possible to give a restricted meaning to the phrase and construe the Article in such a restricted fashion as to limit its scope to cases of alienation not initially void but only voidable and which would be valid if not avoided by an order or degree of the Court. 13. In my judgment cases of void transfer were intended to be covered by Article 134 A of the Limitation Act and the phrase 'to set aside a transfer of immoveable properties' must be given a very generous meaning to cover not merely cases of voidable transactions but to 'void transactions as well effected by the manager of endowed property having no title to the same.

Final Decision: The suit was decreed in terms of prayers (b) (c) (f) (i). The lease was adjudged to be void and an injunction was issued in wider terms so as to restrain the defendant Ashutosh Coomar, his agents and servants not merely from dismantling the structure at premises No. 141, Cornwallis Street but also from doing any act on the basis of the lease and from receiving any rents from the demised premises.