Tapan Kumar Dutt, J.@mdashHeard the learned advocates for the respective parties. The facts of the case very briefly are as follows:
By a registered deed of settlement dated 25th January, 1968 one Sushil Chandra Kayal conferred life interest in respect of the suit property in favour of his second wife Nalinibala Kayal and it appears that it was stipulated in the said deed of settlement that so long as Nalinibala Kayal will be alive, she will possess, enjoy and maintain the suit property by mutating her name and paying taxes and that from the income of the said property the said Nalinibala Kayal (second wife of Sushil Chandra Kayal) will maintain herself and also one Kalyani Kumar, as indicated in the said deed. It appears that it was further stipulated in the said deed of settlement that the said Nalinibala Kayal will never be able to sell the suit property to any person, but, Nalinibala Koyal will be able to let out the said property and will also hold festival every year on the birth day of Sushil Chandra''s preceptor Sri Sri Sitaram Onkarnath as stipulated in the said deed. It was further stipulated in the said deed that after the demise of Nalinibala Kayal and Sushil Chandra Kayal, the nephew of Sushil Chandra Kayal, namely, Shyam Sundar Kayal will maintain and look after the said property and from the income of the said property the said Shyam Sundar Kayal will look after the said Kalyani Kumar and her children and will also hold festival every year on the birth day of the said preceptor of Sushil Chandra Kayal. It appears that it was further stipulated in the said deed that the said Shyam Sundar Kayal shall be under an obligation, after meeting the necessary expenses as stipulated in the said deed, to develop the said property for increasing its income and whatever fund remains after meeting such obligations the said fund can be utilised by the said Shyam Sundar Kayal for his personal purpose, and it was further stipulated in the said deed that the said Shyam Sundar Kayal during his lifetime and before his death may appoint any person for looking after the said property. That Sushil Chandra Kayal and Nalinibala Kayal further executed a registered deed of gift dated 25th September, 1974 in respect of some property.
2. That after the death of Sushil Chandra Kayal, the said Kalyani Kumar brought a suit being Title Suit No. 95 of 1979 against the said Nalinibala Kayal and Shyam Sundar Kayal for partition and declaration. It appears that in the said suit Shyam Sundar Kayal was appointed as a receiver but the said suit was ultimately dismissed and the said Kalyani Kumar preferred an appeal being F.A. No. 318 of 1987 in this Hon''ble Court. The said Kalyani Kumar and Nalinibala Kayal along with the proforma defendants/respondent Nos.3 to 5 entered into a compromise and the said appeal was disposed of on the basis of such compromise. It appears from the order passed by the Hon''ble Court on the basis of the said compromise that neither the said Kalyani Kumar nor the said Nalinibala Kayal and the proforma respondent Nos. 3 to 5 claimed any interest in respect of the subject matter of the deed of gift dated 25th September, 1974 which was made in favour of Shyam Sundar Kayal, as aforesaid, and it was directed that the suit will be dismissed as regards the said property which is the subject matter of the said deed of gift. It was further recorded in the said order of the Hon''ble Court that the terms of compromise are lawful and are made for the benefit of both the appellant (in the said appeal) as well as the respondent No. 1 (in the said appeal), that is, Nalinibala Kayal. It was further recorded in the said order that whatever compromise has been recorded in between the appellant (Kalyani Kumar) and the respondent No. 1 (Nalinibala Kayal) and respondent Nos.3 to 5 has been so done without prejudice to the rights and contentions of the respondent No. 2 (Shyam Sundar Kayal) and that the Hon''ble Court did not feel it duty bound to decide upon the slender rights, if any, of the respondent No. 2 (Shyam Sundar Kayal) with regard to the rights and management over the suit property, given by the settlor in the deed of trust made by the said Sushil Chandra Kayal, which would arise on the death of the respondent No. 1 (Nalinibala Kayal). The Hon''ble Court in the said order was also pleased to record that in view of the settlement arrived at, as aforesaid, the Hon''ble Court was of the view that since the property which is the subject matter of the said deed of gift in favour of Shyam Sundar Kayal is in no manner prejudicially affected by virtue of the said compromise, the said Shyam Sundar cannot any more continue to exercise rights of management over the suit property, barring, of course, Shyam Sundar''s own property which is the subject matter of the deed of gift. The said Hon''ble Court gave liberty to the said Shyam Sundar to vindicate his rights in the appropriate legal forum, if so advised.
3. Against the said Judgment and decree passed by the Hon''ble Division Bench in F.A. No. 318 of 1987 the said Shyam Sundar Kayal preferred a SLP before the Hon''ble Supreme Court, and, by order dated 01.12.1994 the Hon''ble Supreme Court was pleased to dispose of the said petition with the observation that "It has also been further clarified in the impugned Judgment that the same would not in any manner prejudice the rights and contentions of the present petitioner, the Judgment being confined only to the dispute between the plaintiff and the other defendant. In such a situation, there is no occasion to entertain this SLP by the present petitioner alone who cannot be treated as a person aggrieved by the impugned Judgment." The learned counsel for the petitioner pointed out that in the terms of settlement, as filed in this Hon''ble Court in the said first appeal, there is a clause wherein it has been recorded that the settlement deed dated 25th January, 1968 excepting the clause 6 is revoked in terms of section 78(a) of the Indian Trust Act and the said Kalyani Kumar and Nalinibala Kayal will become absolute owners in respect of the property as mentioned in the said terms of settlement.
4. It appears from the plaint in T.S. No. 142 of 2006 that the said Shyam Sundar Kayal has filed a suit being T.S. No. 51 of 1995 against Nalinibala Kayal in respect of the title of the said Shyam Sundar Kayal and the said suit is still pending. A copy of the plaint of the said T.S. No. 51 of 1995 has been produced before this Court by the learned counsel appearing on behalf of the opposite party and from such copy of the plaint it appears that Nalinibala Kayal and Kalyani Kumar have also been made party defendants along with others and prayer has been made in the said plaint, inter alia, for a decree of declaration that the compromise decree dated 12th August, 1995 passed in F.A. No. 318 of 1987 is a nullity, void and without jurisdiction and it has no legal effect and binding force and also for a decree for declaration that the deed of settlement dated 25th January, 1968 is still subsisting and rights and benefits created by the said deed of settlement in favour of Shyam Sundar Kayal remains unaffected and Shyam Sundar Kayal is entitled to act as Trustee and beneficiary of the Trust Estate created by Sushil Chandra Kayal, since deceased, by the said deed of settlement after the death of Nalinibala Kayal in the manner laid down in the said deed of settlement and for further declaration that Shyam Sundar''s right as beneficiary to the suit property, as reserved under the deed of settlement, has not been affected by the said compromise decree passed in F.A. No. 318 of 1987. It has been submitted by the learned counsel for the opposite party that by order dated 28.03.1995 the learned Trial Court refused the prayer for temporary injunction made by the said Shyam Sundar Kayal. It has been further submitted by the learned counsel for the opposite party that Shyam Sundar Kayal filed another T.S. Suit No. 1 of 2002 against the Bally Municipal Corporation and others. It appears from the order dated 05.02.2004 passed in the said T.S. No. 1 of 2002, a copy of which was also submitted by the learned counsel for the opposite party, that the learned Trial Court observed that the plaintiff (Shyam Sundar Kayal) did not file any document to show that Nalinibala Kayal transferred the suit property and has also failed to disclose the name of the person to whom the property is transferred and there is no document to show that the said Bally Municipal Corporation is going to the mutate the name of any person and prima facie there is no threat of injury and thus the plaintiff (Shyam Sundar Kayal) failed to establish a prima facie case and thus the learned Trial Court rejected the application for temporary injunction on contest. It is the case of the opposite party that by a registered deed of conveyance dated 11th August, 2005 Nalinibala Kayal and the legal heirs of Kalyani Kumar sold out the suit property to the opposite party. It appears from a copy of the said deed dated 11th August, 2005 as has been annexed to the application under Article 227 of the Constitution of India, that Kalyani Kumar died intestate on 30.04.2005. That the petitioner (Shyam Sundar Kayal) filed Title Suit No. 142 of 2006 praying for a decree for declaration that the petitioner is the absolute owner of the suit property and the defendant/opposite party has not acquired any right, title or interest thereon and also a decree for permanent injunction restraining the opposite party and its men and agents from making any construction on the suit property by changing the nature and character thereof and further restraining the opposite party not to dispossess the petitioner from the suit property or to sell/transfer/encumber/alienate/assign the suit property to any third party in any manner.
5. That after filing the said T.S. No. 142 of 2006 the petitioner filed an application for injunction and the learned Trial Court by order dated 25.09.2006 disposed of the said application for injunction on contest by directing both the parties to maintain status quo in respect of nature, character and possession of the suit property till the disposal of the suit. The defendant/opposite party preferred Misc. Appeal No. 250 of 2006 and made an application for stay of operation of the order passed by the learned Trial Judge but the said prayer was refused and as such the opposite party moved this Court in revision being C.O. No. 4193 of 2006 and an Hon''ble single Judge of this Court by order dated 1st December, 2006 was pleased to dispose of the revisional application by directing the learned District Judge, Howrah to hear out the main Misc. Appeal No. 250 of 2006 within a stipulated time and His Lordship was pleased to observe that all issues have been left open for discussion before the learned Appellate Court and the learned Appellate Court is required to pass a reasoned order, touching on all the points raised by the parties to the dispute, without being swayed by the said order of this Court. By order dated 22nd December, 2006 (i.e. impugned order) the learned Lower Appellate Court allowed the said Misc. Appeal No. 250 of 2006 by vacating the aforesaid order dated 25.09.2006 passed by the learned Trial Court.
6. That challenging such order dated 22nd December, 2006 the petitioner has filed the present application under Article 227 of the Constitution of India.
7. According to the learned counsel for the petitioner the property in dispute is a trust property and that the petitioner as a trustee in respect of such property is the legal owner of the trust property and the property vests in the petitioner. According to the petitioner Nalinibala Kayal and Kalyani Kumar and/or her heirs being the beneficiaries under the deed of settlement dated 25.01.1968 only have a right against the trustee, that is, the petitioner, to enforce the obligation of maintaining the said beneficiaries, particularly, when such obligation is annexed to the ownership of the property. In respect of such submission the said learned counsel relied upon a decision reported at
8. The petitioner''s learned counsel next submitted that the petitioner is having a vested interest in the suit property being the named trustee. Reliance was placed upon a Judgment reported at 38 IA 54 (Bhagabati Barmanya & Anr. v. Kali Charan Singh & Anr.). It was submitted by the petitioner''s learned counsel that Nalibala Kayal and Kalyani Kumar being the beneficiaries, they cannot claim ownership in respect of the suit property but at best they can claim a right against the trustee, who is the owner of the trust property, to discharge the obligation reposed in such trust and to maintain them out of the income of the trust property.
9. According to the petitioner''s learned counsel, the said Nalibala Kayal and Kalyani Kumar and the proforma respondents in the said F.A. No. 318 of 1987 could not have revoked the deed of settlement since they were only beneficiaries and they could only claim maintenance. The said learned counsel pointed out that apart from maintaining the beneficiaries the said settlor Sushil Chandra Kayal also required, in the said deed of settlement, that the trustee shall perform some religious duties including serving indigent persons and also performing birth anniversary of Sri Sri Onkarnath Thakur and performing "Harinam" every year. Thus, according to the said learned counsel, apart from maintaining the beneficiaries under the said trust there are other religious and charitable functions to be performed out of the Income of the property. The said learned counsel has submitted that it cannot be said that the entire income arising out of the property of the said settlor is meant only for the maintenance of the Nalinibala Kayal and Kalyani Kumar and/or her heirs.
10. According to the petitioner''s learned counsel, by the said deed of settlement Nalinibala Kayal has been given only a life interest on the death of Sushil Chandra Kayal and that Nalinibala Kayal cannot claim absolute rights in the said trust properties u/s 14(1) of the Hindu Succession Act, particularly, when section 14(2) of the said Act protected such disposition. According to the said learned counsel, the said Nalinibala Kayal and Kalyani Kumar cannot claim absolute rights in the said property by revoking the said deed of settlement. Reliance was placed on the said case of W.O. Hol''sworth (supra) and also
11. According to the petitioner''s learned counsel the learned Lower Appellate Court did not consider the legal position as indicated above and as such the finding that the petitioner could not make out a prima facie case cannot be sustained. According to the said learned counsel, the learned Lower Appellate Court also did not consider the cumulative facts regarding the prima facie case, balance of conveyance and irreparable loss and injury and as such did not meet the requirements as laid down in the decision reported at 2005(4) ICC 225 (Ajendraprasadji Narendraprasadji Pandey v. Swamy K. Narayandasji & Ors.).
12. According to the petitioner''s learned counsel, the learned Lower Appellate Court also did not comply with the requirement contained in the order passed by an Hon''ble single Judge of this Court (in C.O. No. 4193 of 2006) in as much as the learned Lower Appellate Court did not consider whether a case of irreparable loss and damage has been made out. It was next submitted by the petitioner''s learned counsel that the other suits which have been mentioned on behalf of the opposite party were prior to the sale of the properties by Nalinibala Kayal and the heirs of Kalyani Kumar and as such the present opposite party could not have been made a party in those suits and the present opposite party cannot rely upon or refer to the said suits and/or any order passed in those suits and the reference of the earlier suits cannot be of any effect in the present proceedings. Next, reliance was placed upon a decision reported at
13. According to the petitioner, the learned Lower Appellate Court without discussing the materials on record has upset the order of the learned Trial Court. Reliance was placed upon the decision reported at
14. The learned counsel for the opposite party submitted that the existence of a prima facie case is a condition for the grant of temporary injunction and where the Court finds that there is no prima facie case there is no necessity of going into the question of balance convenience and inconvenience or irreparable loss and injury. It is only where the Court finds that there a prima facie case that the Court is required to go into the other two questions of balance of convenience and inconvenience and also irreparable loss and injury. The decision reported at
15. It was next submitted by the learned counsel for the opposite party that in the present case there is no grant of land or interest therein at all and the petitioner was given right to appropriate excess income, if there be any, in view of his obligation to manage the estate. Reference was made to the decision reported at 70 C.W.N. 652 (Tara Prasad Mukherjee & Ors. v. Ganesh Chandra Mondal & Ors.). The following line in the said reported case was relied upon: "Now in determining whether land which is the subject matter of a service grant is resumable at the will of the grantor or not, the classic distinction has been laid down between the grant of an office to be remunerated by the use of the land and the grant of land burdened with service."
16. It was next submitted by the learned counsel for the opposite party that while disposing of the First Appeal on the basis of the said compromise, as aforesaid, this Hon''ble Court held that this Hon''ble Court did not feel it duty bound to decide upon the petitioner''s slender right of management over the suit properties and that the present petitioner cannot any more continue to exercise his rights of management over the suit properties except the property which was gifted to him. According to the opposite party the present suit and the injunction application is based on an absurd claim and the petitioner has no prima facie case and that Nalinibala Kayal initially had a life estate and she became a full owner upon the death of her husband and the smaller interest merged in the larger interest. Reference was made to
17. According to the opposite party, the petitioner having no title to the property, is not entitled to an order of injunction against the true owner. Reference was made to
18. Reference was made to
19. According to the opposite party, the petitioner is claiming his right in view of the distant possibility of becoming a trustee and his chance of getting an excess out of the income of the trust estate after meeting the expenses directed to be incurred. According to the learned counsel, the trustee accepts the office to uphold the trust and not secure his interest and a trust is otherwise revocable u/s 78 of the Trust Act and the alleged benefit under the Deed of Settlement is not a beneficial interest created in favour of the petitioner who was to have a reward by way of remuneration for the managerial task to be discharged. According to the opposite party, after the death of Sushil Chandra Kayal, Nalinibala Kayal and Kalyani Kumar became the true owners and that in the present case the trust was revoked and that Nalinibala Kayal, who is still alive, holds the trust estate and is assumed to continue. According to the learned counsel for the opposite party, u/s 77 a trust may suffer extinction on account of its purpose being completely fulfilled and that in the instant case, the purpose of the trust is to be treated as completely fulfilled after the death of Sushil Chandra Kayal and that neither Nalinibala Kayal nor Kalyani Kumar can be deprived of rights and privileges as full owners and that Nalini''s life estate cannot survive when both Nalinibala Kayal and Kalyani Kumar had agreed to revoke the deed of settlement. According to the said learned counsel the petitioner who is alleging to be the trustee cannot put up a claim adverse to the real beneficiaries. The opposite party''s learned counsel further submitted that in view of the provisions of section 14 of the Trust Act and upon a plain reading of the deed of settlement it is not possible to accept that a legacy was created in favour of the petitioner.
20. It was submitted by the learned counsel for the opposite party, that, in the instant case, it would appear from the said deed of settlement that no interest in the suit property was given to the petitioner and the said deed of settlement was made for the maintenance of Nalinibala Kayal and heirs of Kalyani Kumar. It was further submitted that the petitioner''s claim in the suit as an absolute owner of the suit property is without any basis and vexatious and that the petitioner has no prima facie case for grant of an order of injunction. It was finally submitted by the learned counsel for the opposite party that since an order of injunction is granted in aid of final relief, in the facts and circumstances of the instant case, the petitioner is not entitled to an order of injunction in view of the fact that the petitioner is not entitled to any relief prayed for in the suit itself and as such the present revisional application should be dismissed.
21. Section 3 of the Indian Trusts Act, 1882 is quoted below:
3. Interpretation-clause. - "trust". - A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:
"author of the trust"; "trustee"; "beneficiary"; "trust property"; "beneficial interest"; "instrument of trust". - The person who reposes or declares the confidence is called the "author of the trust"; The person who accepts the confidence is called the "trustee"; the person for whose benefit the confidence is accepted is called the "beneficiary"; the subject-matter of the trust is called "trust property" or "trust money"; the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust property; and the instrument, if any, by which the trust is declared is called the "instrument of trust";
"breach of trust". - A breach of any duty imposed on a trustee, as such, by any law for the time being in force, is called a "breach of trust";
"registered", expressions defined in Act 9 of 1872. - And in this Act, unless there be something repugnant in the subject of context, "registered" means registered under the law for the registration of documents for the time being in force; a person is said to have "notice" of a fact either when he actually knows that fact or when, but for willful abstention from inquiry or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act, 1872, section 229; and all expressions used herein and defined in the Indian Contract Act, 1872, shall be deemed to have the meanings respectively attributed to them by that Act.
22. Dealing with the said section 3 of the said Act of 1882, the Hon''ble Supreme Court in W.O. Holdsworth''s case (supra) was pleased to observe that the "definitions emphasize that the trustee is the owner of the trust property and the beneficiary only has a right against the trustee as owner of the trust property. The trustee is thus the legal owner of the trust property and the property vests in him as such. He no doubt holds the trust property for the benefit of the beneficiaries but he does not hold it on their behalf. The expressions "for the benefit of" and "on behalf of" are not synonymous with each other. They convey different meanings". Thus, from the aforesaid observations of the Hon''ble Supreme Court, it is found that the trustee becomes the legal owner of the trust property and the property vests in him as such and the trustee does not hold the property on behalf of the beneficiaries even though he holds it for the benefit of the beneficiaries. In Bhagabati Barmanya''s case (supra), a Hindu gentleman named Ram Lal Singh executed a will on a certain day and the testator died on the next day and at the date of the will the testator had no issue. The testator''s mother and the testator''s wife were alive and the testator had four sisters living. Two sisters were childless widows and the other two had male offspring. In the will the testator stated that "My mother, Phudan Kumari Barmanya, and my wife, Bhagabati Barmanya, shall, as long as they live, hold possession of all my properties, movable and immovable, and enjoy and possess the same on payment of the Collectorate revenue and the Zamindars'' rents, and by maintaining intact and continuing the service of the established deities and the ancestral rites according to the practice heretofore obtaining, and shall pay off my debts and realize my dues. They shall not be competent in any way to transfer the immovable property to any one. On the death of my mother and my wife, the sons of my sisters, Golap Sundari Barmanya and Annapurna Barmanya, that is to say, their sons who are now in existence, as also those who may be born hereafter, shall, in equal shares, hold the said properties in possession and enjoyment by right of inheritance, and shall maintain intact and continue the service of the established deities and the ancestral rites according to the practice heretofore obtaining."
23. The Hon''ble Court was pleased to inter alia observe the following:
Apart from this point the learned counsel for the appellant argued in the first place that there was no vesting until the death of the survivor of the mother and the widow. Their Lordships, however, think it is clear on the construction of this will that the nephews were intended to take a vested and transmittable interest on the death of the testator, though their possession and enjoyment were postponed.
24. Citing the aforesaid two decisions in W.O. Holdsworth''s case (supra) and Bhagabati Barmanya''s case (supra), the learned advocate for the petitioner submitted that it cannot be said that the petitioner does not have a prima facie case and it was submitted that the petitioner is having a vested interest in the suit property being the named trustee. In State Bank of India''s case (supra), the Hon''ble Supreme Court was pleased to observe that "The provisions in section 3 of the Trusts Act, as seen, emphasise the fact that the beneficiary has a right to obtain his beneficial interest or interest against the trustee as owner of the trust property. The trustee, therefore, would, no doubt, become trust property''s owner for the purpose of effectively executing or administering the trust for the benefit of the beneficiaries and for due administration thereof but not for any other purpose." Therefore, it appears from such observations of the Hon''ble Supreme Court that the trustee becomes the owner of the trust property for the purpose of effectively executing or administering the trust for the benefit of the beneficiaries and for due administration thereof but not for any other purpose. The question, in the instant case, that arises is whether or not the petitioner is entitled to raise the point that Nalini Bala is not legally entitled to sell the suit property to any third party in view of the aforesaid deed of settlement. It has to be remembered that the petitioner was not a party to the compromise in the aforesaid First Appeal. It was recorded inter alia in the Judgment dated 17th August, 1993 that whatever compromise was recorded in between the appellant and the respondent Nos. 1 and 3 to 5 was so done without prejudice to the rights and contentions of the respondent No. 2 in the aforesaid First Appeal, that is, the petitioner herein. In the aforesaid First Appeal it was also observed by the Hon''ble Court that the Hon''ble Court did not feel it duty bound to decide upon the slender rights, if any, of the respondent No. 2 with regard to the right of management over the suit properties given by the settlor in the deed of trust made by late Sushil Chandra Kayal which would arise on the death of the respondent No. 1 i.e. Nalinibala Kayal. It also appears from the said Judgment in the aforesaid First Appeal that the Hon''ble Court was pleased to observe that in view of the aforesaid compromise the Hon''ble Court was of the view that since the property which was gifted to the petitioner by the said Sushil Chandra Kayal and Nalinibala Kayal is in no manner prejudicially affected by virtue of the said compromise, the petitioner herein cannot any more continue to exercise his right of management over the suit properties barring of course the petitioner''s own property which is the subject matter of the deed of gift. Having said this, the Hon''ble Court was pleased to grant "liberty" to the petitioner herein to vindicate his rights, if any, in the appropriate legal forum if he be so advised. Thus, the Hon''ble Court gave the petitioner the liberty to vindicate his rights, if any, in the appropriate legal forum. It would also appear that the Hon''ble Court did not say that the petitioner herein has no right at all and there is no dispute about the fact that the petitioner was not a party to the compromise. In the order dated 01.12.1994 the Hon''ble Supreme Court was pleased to take note of the fact that the original suit filed by Kalyani Kumar stood dismissed against the petitioner herein and it was also clarified in the Judgment of Hon''ble High Court in the aforesaid First Appeal that the same would not in any manner prejudice the rights and contentions of the petitioner herein, and the Judgment of the Hon''ble High Court in the said First Appeal being confined only to the dispute between the plaintiff and the other defendant in the aforesaid suit brought by Kalyani Kumar. The Hon''ble Supreme Court was pleased to observe that in such a situation the present petitioner cannot be treated as a person aggrieved by the said Judgment in the First Appeal. Thus, it appears that the compromise in the said First Appeal between Nalini Bala, Kalyani Kumar and some others cannot be binding upon the petitioner herein and the petitioner is free to ventilate his grievances before the appropriate forum.
25. The decision reported at 2006 SAR (Civil) 750 (Sadhu Singh v. Gurdwara Sahib Narike & Ors.), the Hon''ble Supreme Court was pleased to observe the following in paragraphs 3, 13, 14, 18, 21, 22 and 24 of the said reports which are quoted below:
3. The finding that Ralla Singh had executed a will on 7.10.1968 rendered by the lower Appellate Court has not been upset by the Second Appellate Court. In fact, it has considered the Second Appeal on the basis that the will has been executed and the property came to Isher Kaur on the basis of that Will. What it has presumably held is that Isher Kaur had pre-existing right in the property and consequently the limitation placed on her rights in the Will, could not prevail in view of section 14(1) of the Hindu Succession Act. It did not bear in mind that the property was the separate property or self-acquired property of Ralla Singh and his widow, though might have succeeded to the property as an absolute and sole heir if Ralla Singh had died intestate on 19.3.1977, had no pre-existing right as such. The widow had, at best, only a right to maintenance and at best could have secured a charge by the process of Court for her maintenance under the Hindu Adoptions and Maintenance Act in the separate property of her husband. May be, in terms of section 39 of the Transfer of Property Act, she could have also enforced the charge even as against an aliened from her husband. Unlike in a case where the widow was in possession of the property on the date of the coming into force of the Act in which she had a pre-existing right at least to maintenance, a situation covered by section 14(1) of the Hindu Succession Act, if his separate property is disposed of by a Hindu male by way of testamentary disposition, placing a restriction on the right given to the widow, the question whether section 14(2) would not be attracted, was not considered at all by the High Court. It proceeded as if the ratio of V. Tulasamma (supra) would preclude any enquiry in that line.
13. An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentary dispose of his property. When he does that, a succession under the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act.
14. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of section 14(2) of the Act and excluding the operation of section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make sections 30 and 14(2) redundant or otiose. It will also make redundant, the expression ''property possessed by a female Hindu'' occurring in section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance.
18. Going by the terms of the will, initially, Ralla Singh has conferred an absolute estate on his wife subject to the restriction that she shall not dispose of the same by a will to any other heirs. The will also says that after the death of Isher Kaur, the two nephews Pritam Singh and Sadhu Singh would take the properties in equal shares. Thus, what is seen is that an apparent absolute estate has been conferred on Isher Kaur but with a stipulation that on her death the property will devolve on his two nephews and with an interdict that she shall not dispose of the property by testamentary disposition in favour of any other heir. It is stated that Isher Kaur will be the owner of the moveable and immoveable properties after the death of the testator. But at the end, the will has also stipulated that Isher Kaur will not be entitled to mortgage or sell the properties during her life time.
21. Thus understood, it has necessarily to be held, as was held by the first Appellate Court, that Isher Kaur was not competent to gift away the properties in favour of the Gurdwara as she had done. Even if the gift were to be treated as valid, the donee thereunder cannot resist the claim for eviction by the legatees under the will, the nephews of Ralla Singh, on the cessation of the life estate of Isher Kaur. Admittedly, that life estate has ceased and once it is found that the plaintiff has acquired a title to the property as a legatee under the will, he would be entitled for and on behalf of himself and his brother to recover possession of the property from the Gurdwara in view of the death of Isher Kaur.
22. An attempt was made to argue that on the death of Ralla Singh the mutation had been effected in favour of the widow Isher Kaur and in the face of it the title of Isher Kaur will have to be found to be absolute. It was also faintly suggested that logically at that time the plaintiff should have put forward the will and the non-propounding of the will at that time is a circumstance militating against the acceptance of the will. We are not able to find any merit in this submission. Merely because mutation was effected, it would not lead to the loss of the title if the plaintiff had otherwise acquired title under the will and the right to possession on the death of Isher Kaur which, obviously occurred after the mutation. On the materials available, including the clear evidence in proof of the will propounded by the plaintiff and upheld by the first appellate Court, which finding was accepted by the second appellate Court, we are satisfied that the fact that at the time of mutation, the plaintiff did not raise an objection on the strength of the will is not a circumstance that would justify the discarding of the will or the effect of it.
24. Thus, on a consideration of all the relevant aspects we have no hesitation in setting aside the Judgment and decree of the High Court and in passing a decree in favour of the plaintiff for recovery of possession of the property from the Gurdwara, the donee from Isher Kaur, and any one claiming under or through it, on the strength of his title and to hold it for himself and his brother. The suit filed by the plaintiff is therefore decree for recovery of possession. Since the donee from Isher Kaur was a Gurdwara and Isher Kaur died only during the pendency of the First Appeal, we hold that the plaintiff would not be entitled to any mesne profits if the properties are surrendered to him by the Gurdwara pursuant to this decree, within a period of six months from today. But, if the Gurdwara does not surrender the property pursuant to this decree within the time stipulated and the plaintiff is compelled to initiate proceedings in execution, the Gurdwara would be liable for mesne profits from the date of the decree of the first appellate Court till recovery of possession at the rate to be determined by the executing Court after first delivering the property to the decree holder pursuant to this decree.
26. In Tara Prasad Mukherjee''s case (supra), questions of chakran land and their incidents arose in the second appeal. In the said case the learned Courts below found concurrently that it was a case of a grant of an office remunerated by the use of land and that it was not a case of grant of land burdened with service. Such concurrent finding of fact was accepted in the second appeal. The Hon''ble Court held that in a case where there is a grant of an office to be remunerated by the use of the land, the land will prima facie be resemble when service is no longer required, and in a case where there is a grant of land burdened with service, prima facie it will not be so. In the said reported case the tenants had denied title of the plaintiffs to resume the land and even had pleaded that they had become tenants of the State and claiming to pay rent to the State. It was also a case of renunciation by the defendants of their character to render service as paiks to the plaintiffs. It was held in the said reported case that the defendants would not in fact and law any more render service as paiks to collect rents for plaintiffs by reason of passing of the West Bengal Estates Acquisition Act and the whole substratum of chakran land was gone. The defendants'' character and their liability to render service to the plaintiffs had disappeared for good. The Hon''ble Court held that no notice to quit was necessary. On perusal of the facts of the said reported case this Court finds it difficult to appreciate as to how the said reported case can be of any help to the opposite party - at least, when the present injunction-matter is under consideration. The present case is concerned with a deed of settlement and a named trustee who is claiming, as a trustee, to be the legal owner of the trust property. There is nothing to show that the petitioner has declined and/or refused to act as a trustee and/or refused to discharge his obligations under the deed of settlement. Since the petitioner was not a party to the aforesaid compromise it cannot be said, at least prima facie, from the standpoint of the petitioner, that there is no trust property at all. The petitioner was not a party to the agreement for revocation of the deed of settlement as contained in the Terms of Settlement filed in the aforesaid F.A. No. 318 of 1987. Thus this Court finds that the said Tara Prasad Mukherjee''s case (supra) cannot be of any help to the opposite party in the present circumstances.
27. In Krishna Kishore Firms'' case (supra) a lessee of a certain property (for running a cinema theatre) entered into an agreement of sale before expiry of lease with one of the co-lessors of his interest and entered into his shoes. The lessee as a licensee had to file all necessary record or certified copies with the application for renewal of licence relating to his lawful possession thereof if he was not the owner. In the said reported case a question arose about the nature of the lessee''s possession. It was observed by the Hon''ble Supreme Court in the said case that when a person having physical control acquires an interest to hold or continue by virtue of an agreement of sale it cannot be said that he had no interest and his possession was forbidden by law. It was further observed by the Hon''ble Court that the lessee concerned may not have become the owner but he could certainly claim that he was in lawful possession. The aforesaid case was cited on behalf of the opposite party for its proposition that Nalinibala initially had a life estate and she became the full owner upon the death of her husband and the smaller interest merged in the larger interest. This Court finds that the said reported case cannot be of any help to the opposite party in the facts of the instant case. It may be that in certain cases the smaller interest may merge into the larger interest but the question in the present case is whether Nalinibala''s life interest ripened into full ownership and for such purpose the learned counsel for the opposite party had to refer to section 14 of the Hindu Succession Act. The lessee''s position in Krishna Kishore Firms'' case (supra) cannot be equated with Nalinibala''s position in the present case. In the present case the applicability of the relevant part of section 14 of Hindu Succession Act has to be considered at the appropriate stage. It cannot be said straightway, at least at this stage and in so far as the petitioner is concerned, that Nalinibala''s life interest has ripened into full ownership.
28. In Kunhayammed''s case (supra) the question involved was as to what is the legal implication and impact of an order rejecting a petition seeking grant of special leave to appeal under Article 136 of the Constitution of India. The said reported case cannot be of any help to the opposite party in the facts and circumstances of the instant case. To find out as to whether Nalinibala''s life interest has ripened into full ownership or not, the said reported case cannot be of any assistance.
29. The question raised by the learned counsel for the opposite party as regards the maintainability of the suit should not be dealt with in the present proceedings since it will be proper for the learned Trial Court to consider such question if it is raised before the learned Trial Court. It also appears that the question of maintainability of the suit was not in issue before the learned Lower Appellate Court.
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32. Reference was made on behalf of the opposite party to the decisions reported at
4. Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing ... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by section 86(a)(b) of the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power u/s 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the Court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the Court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the Court''s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.
33. It will appear that in the said reported case the Hon''ble Supreme Court was pleased to observe that prima facie case should not be confused with prima facie title which has to be established, on evidence at the trial, and that a prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. This Court is of the view that the case of the petitioner is required to be tried since the points involved in the said case do raise substantial questions which are required to be decided by the learned Trial Court. The facts of Mahadeo Savlaram Shelke''s case (supra) shows that a public purpose was involved in said case. In Maharwal Khewaji Trust''s case (supra), the Hon''ble Supreme Court was of the view that unless and until a case of irreparable loss or damage is made out by a parry to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may lead to multiplicity of proceedings. Paragraph 10 of the said reports is quoted below:
10. Be that as it may, Mr. Sachar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower Appellate Court and the High Court were justified in permitting the respondent to change the nature of the property by putting up construction as also by permitting the alienation of the property, whatever may be the conditions on which the same is done. In the event of the appellant''s claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the Courts below, namely, the lower appellate Court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial restored.
34. It appears that the Learned Lower Appellate Court has missed a very material point - the point is, when the petitioner was kept out of the compromise, as aforesaid, whether the said compromise can be said to be binding on the petitioner. The learned Lower Appellate Court proceeded on the basis that when the compromise decree stands, the petitioner''s scope of taking the plea that Nalinibala had no right to sell or alienate the property in question hardly has any ground to stand upon. This Court is of the view that while deciding the Misc. Appeal, the learned Lower Appellate Court could not have come to such a finding. This Court does not agree with the view of the learned Lower Appellate Court that "it can be safely presumed that the plaintiff/respondent had no manner of prima facie case to pray for an injunction against the present appellant."
35. It appears from the impugned order that the learned Lower Appellate Court did not consider the principle that unless and until a case of irreparable loss and damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceeding. The learned Lower Appellate Court observed that "Much has been agitated before this Court regarding filing of S.L.P, at the instance of the respondent before the Hon''ble Supreme Court but on perusal of the relevant order this Court finds that by that order the verdict of Hon''ble High Court in the compromise decree has been upheld and respondent has not been given any right, title and interest over the suit property." The Hon''ble Supreme Court''s order has already been indicated above. From a perusal of the said order it cannot be said that there was any positive declaration that the petitioner has not been given any right, title and interest over the suit property. Thus, it appears that the learned Lower Appellate Court proceeded on a misconception of law and facts. The learned Trial Court was right in coming to a finding that the petitioner has a prima facie case to go for trial and "If the alleged construction is not restrained and the suit property be not preserved in its status quo, the plaintiff may suffer irreparable loss and injury. If the suit property is allowed to be transferred to third parties, it will create multiplicity of proceedings. On the other hand if the suit property is preserved in its status quo and the suit is decided expeditiously the defendant will not be prejudiced. Therefore balance of convenience and inconvenience is in plaintiff''s favour." The learned Trial Court was right in ordering that "Both the parties are directed to maintain status quo in respect of nature, character and possession of the suit property till disposal of the suit."
36. In view of the discussions made above, the impugned order passed by the learned Lower Appellate Court is set aside and the order passed by the learned Trial Court is restored. There will, however, be no order as to costs.
37. It is, however, made clear that the learned Trial Court shall not be influenced by the observations, if any, made in the present order when the learned Trial Court finally decides the issues that may be involved in the suit.
Urgent Xerox certified copy of this order, if applied for, be supplied to the parties upon compliance of requisite formalities before the summer vacation, if possible.
Application succeeds.
