A contract made by a trustee in excess of their powers or in breach of trust cannot be specifically enforced under Section 11(2) of the Specific Relief Act, 1963.

Debangsu Basak, J.

The suit is for specific performance of an agreement dated August 13, 1988.

The original defendant No. 1 was the owner of premises No. 12F, Nather Bagan Street, Kolkata. The plaintiff claims his father to be a tenant in respect of a portion of the said premises. The plaintiff and the original defendant No. 1 entered into the agreement dated August 13, 1988 whereby and whereunder the original defendant No. 1 agreed to sale the said premises to the plaintiff at and for an agreed consideration. The plaintiff claims that the original defendant No. 1 did not honour the agreement for sale requiring the plaintiff to file the suit for specific performance of such agreement against the original defendant No. 1 and one of her sons, the original defendant No. 2. Subsequent to the filing of the suit the two original defendants died. They were substituted. During their lifetime both the original defendants filed written statements individually. The defence of the original defendants was that the agreement for sale dated August 13, 1988 was unenforceable since the original defendant No. 1 had created a trust prior to the agreement for sale. Such trust was created by a registered deed of settlement dated November 26, 1983. By such deed, the original defendant No. 1 retained to herself the right to revoke such deed of settlement. The original defendant No. 1 appointed herself and one of his sons, the original defendant No. 2 as the trustees with the right to the trustees to deal with the immovable property concerned. The deed of settlement also provided that, the original defendant No. 2 upon the death of the original defendant No. 1, the original defendant No. 2 will become the sole and absolute owner of the said premises. In her written statement the original defendant No. 1 claimed that she did not understand the agreement for sale as it was written in English.

The suit was initially decreed ex parte. The ex parte decree was set aside at the behest of the substituted defendants. An appeal therefrom was disposed of by allowing the substituted defendants to file additional written statement. The appeal Court requested hearing of the suit on priority basis. The substituted defendants filed an additional written statement.

In deference to the request made by the Division Bench in the judgment and order dated August 28, 2012, the suit was taken up for hearing on priority basis as soon as the said order was placed before me.

The parties suggested issues and they were settled on November 19, 2014 as follows:-

1. Whether the plaintiff is entitled to specific performance of the agreement dated August 13, 1988 as prayed for?

2. Whether one of the trustees can deal with the trust property in exclusion to the other trustee and beneficiary?

3. Whether the trust deed dated November 26, 1983 stood extinguished prior to the alleged agreement?

4. To what relief, if any, is the plaintiff entitled to?

The plaintiff produced himself as his witness. He was examined and cross-examined. The substituted defendants declined to produce any witness.

On the first issue learned Counsel for the plaintiff submits that the agreement dated August 13, 1988 being Exhibit ‘A’ is a valid agreement. The fact that the original defendant No. 1 entered into such agreement is not disputed by the parties. By the agreement dated August 13, 1988 particularly clauses 3 and 9 thereof, the original defendant No. 1 agreed to make out a good marketable title in respect of the property concerned. According to him, the plaintiff is entitled to specific performance of such clauses in the agreement for sale. The plaintiff, according to him, is seeking specific performance of the entirety of the agreement dated August 13, 1988. The agreement being Exhibit ‘A’ is capable of being specifically enforced.

The original defendant No. 1 had retained with her the right to revoke the earlier trust deed. The fact that she did not do so was not an impediment to the pl