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Bombay High CourtIndian Cases

Kamleshsingh Harnamsingh Chowhan vs Gangasingh Motisingh Chowhan … on 22 July 2004

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Bombay High Court
Kamleshsingh Harnamsingh Chowhan vs Gangasingh Motisingh Chowhan … on 22 July, 2004
Equivalent citations: AIR2005BOM35, 2005(1)BOMCR290, 2005(1)MHLJ493, AIR 2005 BOMBAY 35, (2005) 27 ALLINDCAS 843 (BOM), (2005) 1 MAH LJ 493, (2005) 1 BOM CR 290
Author: D.K. Deshmukh
Bench: D.K. Deshmukh
JUDGMENT

D.K. Deshmukh, J.

1. By consent of parties this suit itself is taken up for final disposal. It was agreed between the parties that no oral evidence is necessary to be led by either of the parties for deciding the suit. It was also agreed between the parties that for deciding this suit only document that needs to be considered by the Court is the deed dated 29-3-1949. Parties are also agreed that though in the suit various reliefs are claimed, only relief that the plaintiff is now pressing is the appointment of the Defendants Nos. 2 and 3 made by the original Defendant No. 1 Ganga singh as a person on whom the property devolve in terms of the above referred deed should be cancelled.

2. The facts that are necessary and relevant are, admittedly the suit property is a building called “Harganga Mahal” situated at Dadar, Mumbai. That property was admittedly owned by one Parvatibai. Parvatibai had one son by name Motisingh. Motisingh had two sons namely Harnamsingh and Gangasingh. Gangasingh was the original Defendant No. 1 Defendants Nos. 2 and 3 are sons of Gangasingh and the Plaintiff is the adopted son of Harnamsingh. The above referred deed executed by Parvatibai provided that the she settled this property in trust for the benefit of her grandsons and greatgrandsons and her son Motisingh and grandson Gangasingh will act as trustees. There were provisions made for distribution of the income from the property amongst Harnamsingh, Gangasingh and great grand-sons. For the purpose of deciding this suit the only, relevant provision is the provision contained in Clause (5)(f) of the deed. It reads as under :-

5(f) On the death of the survivor of them the said Kunwar Harnam singh Moti singh and the said Kunwar Gangasingh Motisingh which point of time is herein referred to as the date of distribution, the Trustees shall hold the Trust Premises and the income thereof and the cash or securities, if any, then standing to the credit of the Repair fund, in trust, for such one or more sons or grandsons of the said Kunwar Harnamsingh and Kunwar Ganga singh in such shares, at such time or times for such interest or interests and in all respects whatsoever in such manner as the said Kunwar Gangasingh shall by deed with or without power of revocation and new appointment or by Will or codicil or other testamentary writing without transgressing the rule against perpetuities or any other rule of law appoint and in default of any and subject to any and such appointment in Trust for all the sons of the said Kunwar Harnamsingh and Kunwar Gangasingh in equal shares but so nevertheless that if any son of the said Kunwar Harnamsingh or kunwar Gangasingh shall have died before the date of distribution leaving son or sons him surviving and existing at the date of distribution then the last mentioned son or sons shall take and if more than one, equally between them the share which his or their deceased father would have taken in the Trust Premises and the income thereof and in the cash or securities representing the Repair Fund had he been alive at the date of distribution.
Admitted position is that Motisingh died on 21-7-1965. Harnamsingh died on 10-11-1984 and therefore in terms of the above quoted paragraph of the deed it was only Gangasingh who had power to appoint persons from amongst grandsons and great grandsons of Parvatibai on whom the property shall devolve on the death of the said Gangasingh. It is also an admitted position that the deed was executed by Gangasingh on 28-2-1992 nominating the Defendants Nos. 2, 3 and 4 who are his sons on whom the property shall devolve. It is further an admitted position that Gangasingh expired on 4-7-2003 and two days before his death he made a codicil which reiterated what is stated in the deed dated 28-2-1992. Therefore, in the present suit what is basically challenged is exclusion by Gangasingh of the Plaintiff.
3. I have heard the learned Counsel for both sides and from the submissions made before me, in my opinion, following issues arise for consideration :

(i) Whether the appointment of Gangasingh made by the deed executed by Parvatibai for nominating the person on whom the property would devolve amounts to creation of Trust?
(ii) If yes, whether that power is to be exercised in consonance with the principle of equity and good faith?
(iii) Whether the power conferred by the deed on Gangasingh of making appointment is a power of the testator delegated to Gangasingh and therefore it is subject to only to those obligations which are imposed by law on the testator.
4. The learned counsel appearing for the Plaintiff submits that the power of appointment involves duties on the same line as those prevailing in discretionary trust and powers of maintenance and advance, and therefore, when that power is conferred on Gangasingh to make an appointment he was under a duty to exercise that power or discretion for valid consideration. He cannot exercise that discretion with malice or enmity. In support of this submission, the learned Counsel relies on a judgment of Chancery Division in the case of Klug v. Klug, another judgment of the Chancery in the case of Turner and Ors. v. Turner and Ors. He also relies on two judgments of the Supreme Court, one in the case of Shanti Vijay & Co. v. Princess Fatima Fouzia, AIR 1980 SC 17 and other in the case of M. V. Ramasubbief v. Manicka Narasimhachari, . He also relies on a judgment of the Division Bench of Calcutta High Court in the case of C. Libovitz v. Official Trustee of W. B. (1965) 69 Cal. W. N. 1010. The learned counsel for the Plaintiff further submits that the deceased Gangasingh has really abused his discretion in excluding the Plaintiff. In the submission of the learned Counsel, Gangasingh excluded the Plaintiff only because according to him the Plaintiff was on enimical terms with deceased Gangasingh. He further submits that the Plaintiff was excluded by Gangasingh also because according to Gangasingh the Plaintiff was not adopted son of the deceased Harnamsingh. The learned Counsel took me through the affidavit of Ganga singh filed in this suit dated 14th September, 2001 and pointed out that in his affidavit Gangasingh has made a statement that the Plaintiff is enimical terms with him and that he has denied that the plaintiff is adopted son of Harnam singh. The learned Counsel submits that only because there was history or litigation between the parties that the deceased Gangasingh excluded the plaintiff.

5. On the other hand, according to the learned Counsel appearing for the Defendants, the power conferred by the deed was power to make appointment so as to determine the trust itself. This was the power of parvatibai herself, which she could have exercised or she could have delegated to anybody. She delegated the power to Gangasingh and merely because that power has not been exercised by Parvatibai, and it has been delegated to Gangasingh, the power does not change and additional obligations do not get attached to its exercise. The learned Counsel also relies on the judgment of this Court in the case of Bapuji Rustamji Karawalla v. Haji Esmail Haji Ahmed .

6. After having heard the learned counsel for the parties and after having gone through the record, in my opinion, all the three issues can be considered together, because real question required to be considered is what is the nature of the power conferred by the above quoted paragraph of the deed on deceased Gangasingh by Parvatibai. Perusal of the above quoted paragraph of the deed executed by Parvatibai shows that Parvatibai had conferred power on Gangasingh to nominate by a deed or a will persons from amongst sons and grand sons of Parvatibai on whom the property shall devolve so that the trust will come to an end. Really speaking it was not necessary for Parvatibai to confer this power on anybody. This power could have been exercised by Parvatibai herself. Had Parvatibai exercised that power herself and picked up one of her grandson or great grandson on whom the property will devolve, there could have been no question of any challenge to the exercise of these powers. What is delegated by Parvatibai to Gangasingh is this power. To my mind, therefore, merely because this power is not exercised by Parvatibai and it is delegated to Gangasingh, the power will not get diminished. Gangasingh will get the same power which was possessed by Parvatibai. If no obligation in the nature of trust or otherwise are attached to the power possessed by Parvatibai, then when that power comes in the hands of Gangasingh no restriction get attached to that power. The judgments of the English Court on which reliance has been placed do not consider the case of power of appointment for determination of the trust. Those judgments consider cases where the power has been exercised by the trustee of a trust which continues to exist. None of these judgments consider the case of conferal of power to terminate or determine the trust. In my opinion, this aspect of the matter has been considered in proper prospective by this Court in its judgment in the case of Bapuji Rustamji Karawalla v. Haji Esmail Haji Ahmed .

7. Even assuming that the power in the hands of Gangasingh was a discretionary power, then that power will have to be exercised by him on his subjective satisfaction. I do not find any material placed by the Plaintiff on record which will indicate that in 1992 when Gangasingh made the appointment he was actuated in malice or was enimical towards the Plaintiff. The affidavit on which reliance is placed is of the year 2001 and the statements in that affidavit have been made by Gangasingh to defend the suit which was filed by the Plaintiff to remove him from trusteeship. In my opinion, only because in his affidavit some statements have been made by Gangasingh against the Plaintiff it cannot be inferred that in 1992 when Gangasingh made the appointment he excluded the Plaintiff for those reasons. After having gone through the record I find that in 1992 when the deed was executed there was no litigation pending between the parties. Even the complaint that was filed by the Plaintiff against Gangasingh was compromised between the parties in 1991. Therefore, even assuming that the power in the hands of Gangasingh was a discretionary power, I do not find any material on record placed by the Plaintiff which can lead one to the conclusion that the power has been abused by Gangasingh in excluding the Plaintiff. As the exercise of discretion is on subjective satisfaction, it is possible that there could have been good and valid reason for Gangasingh to exclude the Plaintiff.

8. Taking overall view of the matter, therefore, in my opinion, the Plaintiff had not made out a case for getting the decree which is claimed by the Plaintiff. In the result, therefore, the suit fails and is dismissed. The Plaintiff to pay to the Defendants costs as incurred by the Defendants.

At the request of the learned counsel for the Plaintiff, the parties are directed to maintain status quo as it exists today for a period of eight weeks from today, in relation to the suit property.

Parties to act on ordinary copy of the order duly authenticated by the Associate/ Personal Secretary of the court as a true copy.