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High Court Of Calcutta
SABYASACHI MUKHERJI
RABINDRA N.DAS - Appellant
Versus
SANTOSH KUMAR MITRA - Respondent
Suit 1507 Of 1965
Decided On : 02/18/1975
TRUST - Deed of Settlement - Validity - Construction - Appointment of Trustees - Power of Nomination - Substitution of Trustees - Mesne Profits.
Fact of the Case:
The suit was filed by the plaintiff, claiming to be the trustee of premises No. 49b, Sashi Bhusan Dey Street, Calcutta, against the defendants for possession of the said premises and mesne profits. The plaintiff claimed that the premises were settled by a deed of settlement dated 2nd July, 1946, by Smt. Provabati Biswas, the original owner, for the benefit of certain persons and objects. The plaintiff claimed to be the successor trustee appointed under the deed of settlement.
Finding of the Court:
The court held that the deed of settlement was valid and that Prodyot Kumar Sarkar had been validly appointed as the trustee under the deed. The court also held that the nomination of successor trustees by Prodyot Kumar Sarkar was valid and legal. The court further held that the order of substitution of the plaintiff as the trustee after the death of Dwijendra Nath Basu was not open for agitation in the suit.
Issues: 1. Whether Prodyot Kumar Sarkar became a trustee by the document dated 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?
Ratio Decidendi: 1. The court held that the deed of settlement was a valid document and that it was intended to be acted upon. The court relied on the fact that the deed was registered and that the defendants had not produced any evidence to show that it was executed fraudulently or without understanding the purport thereof. 2. The court held that Prodyot Kumar Sarkar had been validly appointed as the trustee under the deed of settlement. The court relied on the fact that the deed of settlement gave Prodyot Kumar Sarkar the power to nominate his successor and that he had validly exercised this power by appointing Asis Kumar Sarkar and Debasis Sarkar as his successors. 3. The court held that the nomination of successor trustees by Prodyot Kumar Sarkar was valid and legal. The court relied on the fact that the deed of settlement gave Prodyot Kumar Sarkar the power to nominate his successor and that he had validly exercised this power by appointing Asis Kumar Sarkar and Debasis Sarkar as his successors.
Final Decision: The court decreed in favor of the plaintiff for possession of the premises and mesne profits at the rate of Rs. 60.00 per month for the second floor and Rs. 15.00 per month for the third floor room from the dates of dispossession until possession is given.
( 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 contin
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