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HIGH COURT OF CALCUTTA
P. B. Mukharji
SHRI MAHADEO JEW - Appellant
Versus
BALKRISHNA VYAS - Respondent
O. O. C. J. 4003 Of 1950
Decided On : SEPTEMBER 4, 1951
TRUST - Consent Decree - Setting Aside - Non-Representation of Deity - Variance with Will - Delegation of Powers - Scheme of Administration.
Fact of the Case:
Suit for setting aside a consent decree in a suit for administration of a trust estate created by a Will, on the grounds of non-representation of the deity, variance with the terms of the Will, and lack of free and voluntary consent by one of the trustees.
Finding of the Court:
1. The consent decree was invalid due to non-representation of the deity, as the deity had a right to be heard on matters concerning its sheva (worship) and the terms of settlement altered the deity's rights under the Will without giving it an opportunity to be heard. 2. The consent decree was also invalid due to variance with the terms of the Will, as it introduced a Managing Trustee who could override the other two trustees, which violated the fundamental principles of the Law of Trustees and the scheme of the Will. 3. The delegation of powers to the Managing Trustee was illegal and void, as it violated the duty of each trustee to exercise their individual judgment and discretion in respect of all matters concerning the trust.
Issues: 1. Whether the consent decree was invalid due to non-representation of the deity. 2. Whether the consent decree was invalid due to variance with the terms of the Will. 3. Whether the consent decree was invalid due to lack of free and voluntary consent by one of the trustees. 4. Whether a scheme of administration could be framed for the trust estate.
Ratio Decidendi: 1. A Hindu deity is a juristic person with the right to sue or be sued and the right to be heard on matters concerning the deity. 2. The terms of settlement and consent decree altered the deity's rights under the Will without giving it an opportunity to be heard, which violated the principles of natural justice and the rule of audi alteram partem. 3. A trustee cannot delegate his powers and duties to another trustee without the consent of the beneficiary, and the delegation of powers to the Managing Trustee in this case was illegal and void. 4. The Court has the power to frame a scheme for the administration of a private trust in a suit for administration, and such a scheme should follow the trusts and directions laid down in the instrument of trust.
Final Decision: The consent decree embodying the terms of settlement was set aside, and a new scheme of administration was laid down by the Court, following the broad outlines of the Will and maintaining the original trustees appointed by the Will.
( 1 ) THIS is a suit for setting aside a consent decree in Suit No. 4156 of 1948, for a declaration that the second plaintiff Ratan Bala was and is still a trustee of the estate of Ranubala Dassi, and if necessary for a decree for administration of the trust estate and for a scheme. The plaintiffs are the Deity Sri Sri Mahadev Jew and Ratan Bala Dassi. Originally there were three defendants, defendant 1 was Dr. Benode Bahari Sen who was appointed the Managing Trustee under the said consent decree but who has since retired during the pendency of this suit. After the necessary amendment there are now two defendants, the first one being Bal Krishna Vyas and defendant 2 is Pran Ballav Saha. The amendment, was made under order of Court dated 15-3-1951.
( 2 ) THE facts of the case are briefly these. One Banubala Dassi a woman of the town died on 22-6-1946 after leaving a Will of the same date in which she appointed the two present defendants as trustees of the trust created by the said Will. Probate was granted of the Will on 15-8-1946 to both these defendants. On 21-12-1948 the defendant Vyas instituted a suit being. Suit No. 4156 of 1948 against defendant 2 Pran Ballav Saha alleging maladministration and misappropriation of the trust estate. The suit came up for hearing on 13-7-1949 before my learned brother S. E. Das Gupta J. and the matter was ultimately settled on certain terms of settlement and a consent decree was made on or about 7-9-1949. That consent decree is now 6hallenged before me in this suit.
( 3 ) ON behalf of the defendants the following Issues were raised and they were accepted on behalf of the plaintiffs. The Issues are : (1) Is the consent decree dated 7-9-1949 invalid on the ground of non-representation of the Deity? (2) Is the consent decree invalid on the ground that it is at variance with the terms of the Will ? (3) Is the consent decree invalid on the ground that there was no free and voluntary consent by Batan Bala? (4) To what scheme of administration, if any, are the plaintiffs entitled? the third Issue is the only issue of fact and the 1st and second Issues are Issues of law. The parties have naturally therefore led evidence on this Issue 3 of fact as to whether there was free and voluntary consent by the plaintiff Batan Bala to the consent decree which is impeached before me. I, therefore propose to take up this third Issue first as it is a question of fact.
( 4 ) ISSUE No. 3.- [his Lordship discussed the evidence and held as follows : -On this evidence I am unable to hold that the consent decree of 7-9-1949 is invalid on the ground that there was no free and voluntary consent by Ratan Bala. I am of the opinion and I hold that Ratan Bala did give her free and voluntary consent to such terms of settlement.
( 5 ) ISSUE No. 1 :-These terms of settlement and the consent decree are said to be invalid on the ground of non-representation of the deity plaintiff Sri Sri Mahadev Jew. The consideration of this Issue involves an examination and analysis, of the terms of settlement and of the provisions of the Will of Renubala. In Suit No. 4156 of 1945 the plaintiff deity was not a party and it is therefore said that the terms of settlement and the consent decree made therein are not binding on the plaintiff deity.
( 6 ) BY Clause 6 of the Will of Eenubala it is provided as follows :"that I have consecrated a deity known as Mahadev Jew at premises No. 3, Gouri Shankar Lane, Calcutta. I direot that the trustees herein mentioned shall carry on the sheva of the said deity and may spend a sum not exceeding Rs. 60 per month for the sheva of the said deity out of the income of the said premises No. 3, Gouri Shankar Lane which is charged for the said purpose. "
( 7 ) THE Will thereafter proceeds in Clause 8 to appoint Bal Krishna Vyas, Pran Ballav Saha and Ratanbala Dassi as trustees.
( 8 ) NOW by the terms of settlement and the consent decree Ratanbala gave up her trusteeship (Cl. 5 ). A third t
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