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IN THE HIGH COURT AT CALCUTTA
Samaresh Banerjea, Provandu Narayan Sinha, JJ.
Subrata Coomar – Appellant
Versus
Pradeep Coomar & Anr. – Respondents
G.A. No. 3121 of 2001, A.P.O.T. No. 519 of 2001, A.P.O. No. 26 off 2002, G.A. No. 3113 of 2000 & A.T.A. No. 3 of 2000
Decided On : June 28, 2002
TRUST - VALIDITY - APPOINTMENT OF NEW TRUSTEE - NECESSARY PARTY - RULE OF PERPETUITY - SECTIONS 73 AND 74 OF THE INDIAN TRUSTS ACT, 1882 - SECTIONS 13 AND 14 OF THE TRANSFER OF PROPERTY ACT, 1882.
Fact of the Case:
The appellant challenged an order appointing a new trustee under Sections 73 and 74 of the Indian Trusts Act, 1882, arguing that he was a necessary party and that the trust was invalid due to the rule of perpetuity.
Finding of the Court:
The court held that the appellant was not a necessary party to the proceeding under Sections 73 and 74 of the Trust Act and that the trust was valid with regard to the beneficiary who was alive at the time of the settlor's death and invalid as to the rest.
Issues: 1. Whether the appellant was a necessary party to the proceeding under Sections 73 and 74 of the Trust Act. 2. Whether the trust was invalid due to the rule of perpetuity.
Ratio Decidendi: 1. The court found that the appellant was not a necessary party to the proceeding under Sections 73 and 74 of the Trust Act because he was not a beneficiary of the trust and had no interest in the matter. 2. The court held that the trust was valid with regard to the beneficiary who was alive at the time of the settlor's death and invalid as to the rest, as the rule of perpetuity only applies to unborn persons.
Final Decision: The court dismissed the appeal and upheld the order appointing a new trustee.
Sinha, J. : This is an appeal preferred by the appellant challenging the judgment and order dated 23.5.2001 passed by the Ld. Trial Judge in G.A. No. 3113 of 2000 arising out of A.T.A. NO.3 of 2000.
2. The appellant's case is that, he filed an application before the learned Court below assailing ex-parte order dated 8.3.2000 obtained by the respondent on an application filed under Sections 73 and 74 of the Indian Trusts Act (hereinafter referred to as the Act), praying for appointment of a new Trustee. It was alleged by the appellant/petitioner in the said petition that Pradeep Coomar did not implead the applicant or other persons interested in the trust property and without serving notice on them obtained the order dated 8.3.2000 which was subsequently corrected by the order dated 7.4.2000 whereby his wife Smt. Basavadatta Coomar was appointed as trustee of the alleged trust.
3. It has been contended by the appellant that in the application filed under Sections 73 and 74 of the Act the respondent Pradeep Coomar averred that Smt. Monmohini Coomar executed a deep of trust on 9th June, 1966 whereby she trusted several movable and immovable properties into the trust and appointed herself a sole trustee and the said trust was created for the maintenance of education, residence of Pradeep Coomar and it was declared in the said deed that henceforth the said trust will be known as “Pradeep Coomar Trust”.
4. The trust deed provides that upon attaining majority Pradeep Coomar will have power as beneficiary to act jointly with the trustee and if he gets children he will act as trustee for the children as beneficiaries. Smt. Monmohini Coomar had three sons and two daughters namely Samarendra Coomar, Sudhirindra Coomar, Pradeep Coomar, Smt. Sandharani Ghosh and Smt. Subhra Mullick. In order to defraud other heirs and successors of Monmohini Coomar, Pradeep Coomar brought into existence the fraudulant Deed of Trust. Smt. Monmohini Coomar did not execute the alleged trust deed and she was illiterate and she could somehow write her name in English. Pradeep Coomar disclosed the existence of the said Deed of Trust only after death of father Binoy Pada Coomar and mother Monmohini Coomar.
5. Samarendra Coomar, father of the present appellant filed a title suit in Sasaram Court in Bihar challenging the said Deed of Trust praying for declaration that Deed of Trust dated 9th June, 1966 alleged to have been executed by Smt. Monmohini Coomar is wrong, illegal, void, inoperative, nullity and is not binding against the plaintiff. After death of Samarendra Coomar the appellant was substituted in the suit and is proceeding with the suit. In the said suit an order of injunction was passed restraining the parties from transferring, encumbering or changing the nature and character of the properties which also included the alleged trust properties and the said injunction order was affirmed by the Patna High Court. Suppressing the aforesaid facts the respondent Pradeep Coomar filed application seeking appointment of his wife Smt. Basavadatta Coomar as trustee alleging that there was no trustee since death of last trustee Monmohini Coomar. The alleged trust is a private trust and vesting of trust property in the ultimate beneficiary was delayed beyond the prescribed statutory period, the purported trust offended the rule against perpetuity and therefore, not a valid trust and void ab initio. The trust properties have devolved upon heirs of Monmohini Coomar on her dyeing intestate in 1984. After obtaining the order from this Court Pradeep Coomar filed list of documents in the title suit in Sasaram Court annexing order of the Court below dated 8.3.2000 and 7.4.2000. On 25.7.2000 he was informed by learned Advocate of Sasaram Court about the list of documents filed by Pradeep Coomar in Sasaram Court. Being Seriously prejudiced by the orders dated 8.3.2000 and 7.4.2000 the petitioner filed application for recalling/setting aside the ex parte order dated 8.3.2
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