The validity and legality of a trust deed executed during the pendency of a partition suit, and its compliance with the provisions of the Indian Trusts Act and Transfer of Property Act.

Jyotirmay Bhattacharya, J.

This second appeal is directed against the judgement and decree dated 11th May, 2016 passed by the learned Additional District Judge, 11th Court, Alipore, 24-Parganas (South) in Title Appeal No. 110 of 2014 affirming the judgement and decree dated 31st March, 2014 passed by the learned Civil Judge (Senior Division), 1st Court at Alipore in Title Suit No. 189 of 1984 at the instance of the plaintiff/appellant.

2. Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure.

3. Here is the case where we find that a suit for partition was filed by the plaintiff/appellant against his mother and his elder brother, claiming ?rd share in the suit property. It was alleged that Atul Krishna Neogi was the original owner of the suit property. He died intestate on 27th December, 1954 leaving behind him the plaintiff viz., Nirmal Kumar Neogi (younger son), the original defendants viz., Sukumar Neogi (elder son), Niva Rani Neogi (wife) and six daughters. Since the said Atul Krishna Neogi died before Hindu Succession Act came into effect, the daughters could not inherit any share in the suit property left by Atul Krishna Neogi. The interest of Atul Krishna Neogi in the suit property, thus, devolved upon his widow and two sons in equal share. Thus, each of them inherited 1/3rd share in the suit property. The plaintiff/appellant, thus, claimed 1/3rd share in the suit property.

4. During the pendency of the suit, the plaintiff/appellant came to know that his mother and his elder brother executed a deed of trust on 3rd May, 1985 for settling their 2/3rd interest in the suit property in favour of the beneficiaries under the said trust. When this fact regarding execution of the said deed of trust by the original defendants came to the knowledge of the plaintiff, the plaintiff amended his plaint challenging the legality, validity and due execution of the said deed of trust. Both the settlors died during the pendency of the suit. The legal representatives of those settlors were substituted in the place of the settlors.

5. The plaintiff/appellant claimed that the deed of trust executed by the original defendants being invalid and illegal, the 2/3rd share which those defendants had in the property ultimately devolved upon the plaintiff/appellant and the other legal representatives of those settlors by way of succession according to Hindu Succession Act.

6. Thus, the plaint was amended challenging the legality and/or validity of the said deed of trust. The plaintiff/appellant claimed that the plaintiff, in fact, became the owner of 17/21th share in the suit property as in addition to the share which he inherited from his father, he also along with the other legal heirs of the original defendants inherited their 2/3rd share in the suit property in equal share.

7. Fact remains that the elder brother of the plaintiff/appellant died bachelor. As such, his interest in the suit property would have devolved upon all the living brother and sisters of the elder brother, had no deed of trust been executed by him. Similarly, the interest of the mother would have devolved upon all her legal representatives including the plaintiff/appellant had she not executed the deed of trust. However, if the deed of trust is found to be valid, then of course, the plaintiff cannot inherit any share in the estate of those original defendants. Even the plaintiff cannot claim any interest in the trust property as he was not included in the list of beneficiaries under the said trust deed.

8. The defendants contested the said suit by filing written statement as well as additional written statement supporting the legality and/or validity of the deed of trust. They claimed that the deed of trust was duly executed by the settlors and the same was duly registered. They, thus, contended that as bene