Civil Appeal No. 18 of 2017 · The High Court
Case Details
S.A.No.238 of 2020 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.238 of 2020 ------ (Against the judgment dated 29.07.2020 passed by learned District Judge-VII, Deoghar in Civil Appeal No.18 of 2017) ------ 1. Chaya Sinha aged about 60 years, wife of Ram Padarath Singh, D/o Sachhida Nand Singh, resident of village- Kenman Kathi, P.O. & P.S.- Jasidih, District- Deoghar and also r/o village- Satya Narayan Lodge of Deoghar, Town/village Dulampur, Satar Road, P.O.- Deosangh, P.S.- Kunda, District- Deoghar 2. Pradip Kumar Singh age about 35 years, s/o Sachhida Nand Singh, r/o village + P.O.- Kenman Kathi, P.S.- Jasidih, District- Deoghar. .... .... …. Plaintiffs /Appellants/ Appellants Versus 1. Sumitra Devi wife of Late Amarchand Dutta 2. Ayan Dutta son of Late Amarchand Dutta 3. Issika Dutta daughter of Amarchand Dutta All residents of 4/1B/14, Madan Dutta Lane, P.O. & P.S.- Michi Para, Kolkata. 4. Mohan Chandra Dutta s/o Bijay Chandra Dutta r/o 13/1A, Madan Dutta Lane, P.O. & P.S.- Michi Para, Kolkata. ....
Legal Reasoning
.... …. Defendants/Respondents/ Defendants For the Appellants :
Legal Reasoning
Mr. Praveen Akhauri, Advocate ------ Mr. Diwa Kant Rai, Advocate For the Respondents : None ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellants. 2. No one turns up on behalf of the respondent in spite of repeated 1 S.A.No.238 of 2020 calls, hence, this appeal is heard and disposed of ex-parte against the respondent. 3. This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment of concurrence dated 29.07.2020 passed by learned District Judge-VII, Deoghar in Civil Appeal No.18 of 2017 by which the learned First Appellate Court dismissed the appeal and affirmed the judgment and decree passed by the trial court being the court of Civil Judge (Senior Division)- VII, Deoghar in Title Suit No.118 of 1998. 4. The case of the plaintiffs in brief is that Purna Chandra Dutta being the Managing trustee of the private trust Shree Ishwar Siddhi Datta Ganesh Jee, being in need of money for the benefit of the deity, entered into an agreement for sale of the land of Satyanarayan lodge. The plaintiffs approached the trustee- Purna Chandra Dutta and offered to purchase the piece of land. Purna Chandra Dutta agreed to sell more or less two Katha of Basouri land together with some old dilapidated construction on valuable consideration amount of Rs.20,000/- and Purna Chandra Dutta and the plaintiff- first party entered into an agreement for sale on 26.04.1990 after receiving the advance amount of Rs.10,000/-. Purna Chandra Dutta executed another agreement for sale of two Katha of vacant Basouri land for a valuable consideration of Rs.20,000/- with the appellant-second party after receiving the advance amount of Rs.10,000/-. Some dispute cropped up between the parties. Purna Chandra Dutta was unable to execute the registered sale-deed within the time and upon receiving further Rs.5,000/- on 21.03.1993 extended the period of execution of registration of sale-deed up to 25.04.1993. The appellant- first party was ready to make payment of Rs.5,000/- but Purna Chandra Dutta was not able to execute the registered sale-deed within 25.04.1993. Hence, he further extended the period for registration of the sale-deed till 30.06.1998 and made an endorsement on 20.03.1993 on the backside of the agreement dated 26.04.1990 and also some conditions have been mentioned in the backside of the agreement of the plaintiff No.2 and Purna Chandra Dutta extended the period of registration of sale-deed on 25.04.1998. The plaintiff also mentioned in the plaint that Kula Chand 2 S.A.No.238 of 2020 Dutta and Badal Chand Dutta were the original trustees and there is provision that after their death, their wives respectively Maheshwari Sundari Dasi and Laleeta Sundari Dasi will become trustees and in case of their death, their male descendants will act as associate co-trustees. Maheshwari Sundari Dasi and Laleeta Sundari Dasi become co-trustee after the death of Kula Chand Dutta and Badal Chand Dutta. Maheshwari Sundari Dasi had no male issues but Laleeta Sundari Dasi had three sons. Her eldest son Tara Chand Dutta died issueless and the youngest son namely Vijay Chand Dutta was a minor. Hence, they entrusted the management of the properties of Deoghar to the defendants and the defendants used to look after the properties situated at Deoghar with the consent of the co-trustees. 5. The original defendant- Purna Chandra Dutta in his written statement challenged the maintainability of the suit on various technical grounds and he also denied that he was competent to execute the agreement for sale in favour of the plaintiffs. After his death, the substituted defendants filed their written statement and they also denied the competency of late Purna Chandra Dutta to execute the agreement for sale sought to be enforced. 6. In view of the rival pleadings of the parties, the learned trial court settled the following ten issues:- (i) Whether the suit is maintainable as framed? (ii) Whether the plaintiff has valid cause of action to file the present suit? (ii) Whether the plaintiff has paid proper court fee in the present suit? (iv) Whether the suit is within the period of limitation and is not barred on the basis of Principle of natural justice? (v) Whether the suit property which is known as Satya Narayan Lodge is under the tenancy of Bihar State Electricity Board? (vi) Whether the husband of plaintiff no.1 is the employee of Bihar State Electricity Board and is in possession of one part of Satya Narayan Lodge in the capacity of employee of Board? (vii) Whether the suit property is the property of private trust named as Sri Ishwar Siddhi Datta Ganesh Jee? (viii) Whether the defendants Purna Chandra Dutta is capable of executing the agreements dated 26.04.1990 and in receiving the earnest money? (ix) Whether plaintiff no.1 and 2 are entitled for relief of the decree of specific performance of contract and also the decree of getting sale deed executed with respect of the suit property mentioned in 3 S.A.No.238 of 2020 Schedule-1 and 2 of the plaint after paying the rest of the consideration amount? (x) Whether the plaintiffs are entitled for the grant of any other relief/reliefs? 7. The learned trial court considered the oral testimony of the ten witnesses examined by the plaintiffs and the documents which have been marked as Ext. 1 to 5D. 8. The learned trial court first took up issue Nos.(vii) and (viii) together and after considering the evidence in the record, came to the conclusion that Purna Chandra Dutta is not capable of executing the agreement dated 26.04.1990 and in receiving the earnest money and the suit property is the property of private trust named as Sri Ishwar Siddhi Datta Ganesh Jee. 9. The learned trial court next took up issue No.(ix) and after considering the evidence in the record came to the conclusion that the plaintiff No.1 and 2 are not entitled for relief of the decree of specific performance of contract and also the decree of getting the sale deed executed with respect of the suit property mentioned in Schedule-1 and 2 of the plaint after paying the rest of the consideration amount. 10. Then, the learned trial court took up issue Nos.(v) and (vi) together and came to the conclusion that there is no evidence in the record to come to any finding as to whether the suit property is under the tenancy of Bihar State Electricity Board but the husband of the plaintiff No.1 was the employee of Bihar State Electricity Board as he retired as Junior Accounts Clerk, Electric Supply Division, Deoghar in January, 2013. 11. The learned trial court then took up issue No.(x) and held that defendants were liable to pay the amount of advance taken by Purna Chandra Dutta with interest thereon @ 7% per annum from the date of agreement. 12. Lastly, the learned trial court took up issue Nos.(i), (ii), (iii) and (iv) together and held that the suit is maintainable and there is cause of action for filing the suit, the suit is not barred by limitation and there is no material to show that inadequate court fee has been paid and went on the decree the suit in part directing the defendants to pay the amount taken 4 S.A.No.238 of 2020 by Purna Chandra Dutta with interest thereon @ 7% per annum within six months from the date of the judgment. 13. Being aggrieved by the judgment and decree passed by the trial court, the appellants preferred Civil Appeal No.18 of 2017 in the court of Principal District Judge, Deoghar which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 14. The learned First Appellate Court after considering the materials in the record and submissions made before it, framed the following three points for determination:- (i) Whether late Puran Chandra Dutt was competent to execute agreements dated 26.04.1990 in favour of the plaintiffs and also to receive advance money from them with respect to the disputed suit property? (ii) Whether the judgment and decree dated 29 May, 2017 passed by Ld. Civil Judge Senior Division (VII), Deoghar in Title Suit no.118/1998 partially decreeing the suit for return of the money instead of granting the relief for specific performance of contract in favour of the plaintiffs (appellants) is liable to be set aside or reversed? (iii) Whether the plaintiffs/appellants are entitled to a decree for a specific performance of the agreement dated 26.04.1990 as was prayed for in the title suit? 15. The learned First Appellate Court took up all the three points for determination together and considered that perusal of the trust deeds shows that Badal Chandra Dutta and Kula Chandra Dutta formed a trust vide the registered trust deed dated 27.09.1938 with respect to the properties i.e. Satyanarayan Lodge and Donovilla and in that trust they made themselves co-trustees. The learned First Appellate Court referred to Section 48 of the Indian Trust Act, 1882 which reads as under:- 48. Co-trustees cannot act singly- When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides. and considered the fact that out of the two trustees only Purna Chandra Dutta has executed the agreement which itself makes the transaction invalid and would not convey title to the plaintiffs as at the time when the agreement was executed by Puran Chandra Dutta, there was another trustee namely Vijay Chandra Dutta; hence it was necessary 5 S.A.No.238 of 2020 that Vijay Chandra Dutta ought to have joined in execution of the agreement for a valid and binding agreement upon the trust. But having not done so, such agreement is not binding upon the trust. 16. The learned First Appellate Court also considered that undisputedly Puran Chandra Dutta executed the agreement as co-trustee of the property and not as heir of Bonomali Dutt. The learned First Appellate Court concurred with the finding of fact of the trial court that at the time of execution of the agreement, the brother of Puran Chandra Dutta namely Vijay Chandra Dutta was alive and was a co-trustee. Hence, Puran Chandra Dutta alone was not competent to receive the earnest money on behalf of the trust. Hence, the plaintiffs are entitled to refund of the earnest money along with the interest and by thus discussing, answered the first point for determination by holding that late Puran Chandra Dutta was not competent to execute the agreement because he was not the sole trustee at the time of the execution of the agreement. 17. The answer given to the second point for determination is that the learned trial court has rightly decided the suit and the impugned judgment and decree do not warrant any interference by the first appellate court. 18. The answer given to the third point for determination is that the relief granted to the plaintiffs vide the impugned judgment and decree has rightly been granted by the learned trial court and the plaintiffs are not entitled for a specific performance of the agreement dated 26.04.1990 and by thus, holding the first appellate court dismissed the appeal and confirmed the judgment and decree passed by the trial court. 19. Mr. Praveen Akhauri- learned counsel for the appellants submits that both the courts below while not granting the relief of specific performance of the contract by execution of the sale-deed in favour of the plaintiffs, have committed an error of law in applying the provisions of Indian Trust Act, 1882 by not giving any specific finding regarding, whether the trust was a public trust or a private trust. Mr. Akhauri next submits that both the courts below failed to consider the pleadings of the plaintiffs that the other trustee namely Vijay Chandra Dutta was a minor, at the time of execution of the agreement. Hence, it is submitted that the 6 S.A.No.238 of 2020 impugned judgment and decree passed by the learned First Appellate Court being not sustainable in law be set aside and the suit for specific performance of the contract filed by the plaintiffs by way of execution of the sale-deed by the defendants in respect of the properties mentioned in Schedule-1 and 2 in the plaint in favour of the plaintiffs be decreed after formulating appropriate substantial question of law. 20. Having heard the submission of the learned counsel for the appellants and after going through the materials in the record, it is pertinent to mention here that Section 48 of the Indian Trust Act, 1882 comes under Chapter- V which relates to disabilities of the trustee. Hence, this Court has no hesitation in holding that Section 48 of the Indian Trust Act, 1882 is applicable to all the trustees of whom there is reference in the Indian Trust Act, 1882 and Section 10 of the Indian Trust Act lays out as to who may be trustee. 21. It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of H. E. H. The Nizam’s Jewellery Trust M/s. Shanti Vijay and Co., etc. etc vs Princess Fatima Fouzia and Others reported in AIR 1980 SC 17 paragraphs-27 and 28 of which read as under:- “27. The law governing the execution of trusts is well settled. In the case of a private trust, where there are more trustees than one, all must join in the execution of the trust. The concurrence of all is in general necessary in a transaction affecting the trust property, and a majority cannot bind the trust estate. In order to bind the trust estate, the act must be the act of all. They constitute one body in the eye of law, and all must act together. This is, of course, subject to any express direction given by the settlor. The Judicial Committee in Man Mohan Das v. Janki Prasad (1945) 72 Ind App 39 (PC) quoted a passage from Lewin’s Law of Trusts, 15th edn., p.190, to the effect;"In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinction: all who accept the office are in the eye of the law acting trustees. If anyone refuses or be incapable to join, it is not competent the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved" which, in their opinion, contains a to proceed without him, but the other for 7 S.A.No.238 of 2020 correct statement of law applicable in England and that the same doctrine applied to India also. The decision in Man Mohan Das’s case has been followed with approval by this Court in Jankirama Iyer v. Neelakanta Iyer (1962) Supp 1 SCR 206. 28. It follows as a necessary corollary, that where there are several trustees they must act unanimously in making a sale or a contract of sale, unless it is provided otherwise by the terms of the deed. In exercising the power of sale, as in the exercise of other powers, a trustee cannot, therefore, properly delegate the performance of the acts which he ought personally perform. Although a trustee may listen to the opinions and wishes of others, he must exercise his own judgment. Thus a trustee for sale of property, cannot leave the whole conduct of the sale to his co-trustees. The reason for this is the settlor has entrusted the trust property and its management to all the trustees, and the beneficiaries are entitled to the benefit of their collective wisdom and experience : Underhill’s Law of Trusts and Trustees, 12th Ed., PP. 434, 442-43; Scot on Trusts, Vol. 2, p. 1033.” (Emphasis Supplied) that where there are several trustees they must act unanimously in making a sale or a contract of sale in respect of trust property, unless it is provided otherwise by the terms of the trust deed. In exercising the power of sale, as in the exercise of other powers, a trustee cannot, therefore, properly delegate the performance of the acts which he ought personally perform. Thus a trustee for sale of property, cannot leave the whole conduct of the sale to his co-trustees. 22. Now, coming to the facts of the case, the learned trial court, in no uncertain terms has held that the trust was a private trust and both the courts below have rightly held that as there were two trustees being Puran Chandra Dutta and Vijay Chandra Dutta and only one of the co- trustee has executed the agreement for sale on behalf of the trust, certainly he was not competent to do so. 23. So far as the contention of the appellants that in the plaint there was pleading that Vijay Chandra Dutta was minor is concerned, the learned counsel for the appellants submits that he does not have the copy of the plaint with him. The perusal of the record reveals that there is no specific pleading of the plaintiff that on the date of execution of the agreement Vijay Chandra Dutta was a minor. In the absence of any pleading or evidence in the record to the effect that Vijay Chandra Dutta was minor, 8 S.A.No.238 of 2020 certainly there was no scope for either of the courts below to consider the same as the perusal of the record reveals that it is the specific case of the plaintiffs as has come through the deposition of P.W.10 that Purna Chandra Dutta was the only trustee which is contrary to the submissions made by the learned counsel for the appellants, before this court. 24. After going through the evidence in the record, this Court finds that the concurrent finding of facts arrived at by both the courts below was not made by ignoring or excluding relevant materials or by taking into consideration irrelevant materials nor the findings of the courts below so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse. 25. Accordingly, this Court is of the considered view that the impugned judgment and decree do not warrant any interference of this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. 26. Further, this Court finds that there is absolutely no substantial question of law involved in this appeal. 27. Thus, this appeal, being without any merit, is dismissed but under the circumstances without any costs. 28. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 1st of March, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 9