Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 846-847 OF 2001
Nawab Shaqafath Ali Khan & Ors. …Appellants
Versus
Nawab Imdad Jah Bahadur & Ors. …Respondents
WITH
CIVIL APPEAL NO. 848 OF 2001
Nawab Imdad Jah Bahadur & Ors. …Appellants
Versus
Nawab Shaqafath Ali Khan & Ors. …Respondents
CIVIL APPEAL NO. 849 OF 2001
Nawab Imdad Jah Bahadur & Ors. …Appellants
Versus
Hon. The Nizam Jewellery Trust & Ors. …Respondents
2
CIVIL APPEAL NO. 850 OF 2001
Nawab Imdad Jah Bahadur & Ors. …Appellants
Versus
Nawab Shaqafath Ali Khan & Ors. …Respondents
CIVIL APPEAL NO. 851 OF 2001
Nawab Imdad Jah Bahadur & Ors. …Appellants
Versus
Nawab Mirzamin Ali Khan & Ors. …Respondents
J U D G M E N T
S.B. SINHA, J :
INTRODUCTION
The Nizam of Hyderabad executed a Trust Deed called “H.E.H. The
Nizam’s Jewellary Trust” dated 29.3.1951 in respect of some of his private
properties, precious gems, jewels. Ornaments, articles of jewellary and
antique pieces.
3
The terms and conditions for discharging the trust are set out therein.
The trust deed has been specified in parts I, II, III of the third schedule.
Two sons of the Nizam, two sons of his elder son, two daughters of
his second son, the daughter of the Nizam through Dullan Pasha Begum
Saheba and his step brother have been mentioned in part I, the remaining
thirteen sons of the Nizam and the children of his deceased son, Kazim Jah
were mentioned in Part II and seventeen daughters have been mentioned in
part III of the third schedule.
The dispute is with regard to the terms ‘Remaining sons and
Remaining Daughters Fund’ expressed in the Will. The children of some of
the deceased remaining sons and remaining daughters seek for a direction to
the trustees to execute the Trust Deed by giving the correct interpretation to
clauses 9 to 11 of the Trust Deed.
The dispute lies in the interpretation of some of the important clauses
of the Trust deed and particularly clauses 9 and 10 thereof.
TRUST DEED
4
The preamble of the Trust Deed dated 29.03.1951 states:
“AND WHEREAS the settler out of natural love
and affection which he bears towards his relatives
specified in the Third Schedule hereunder written
and for diverse other good causes and
considerations him there unto moving, is desirous
of making a settlement of the said articles
specified in the First Schedule hereunder written
and of the said securities specified in the Second
Schedule hereunder written in manner hereinafter
appearing AND WHEREAS the trustees have
agreed to become the first Trustees of these
presents as is testified by their being parties to and
executing these presents AND WHEREAS prior to
the execution of these presents the said articles
specified in the First Schedule hereunder written
and the said securities specified in the Second
Schedule hereunder written have been delivered
by the Settlor to the Trustees, NOW THIS
INDENTURE WITNESSETH as follows:-
1. in the consideration of the premises and of
natural love and affection which the settler
bears towards his relatives specified in the
Third Schedule hereunder written and for
divers other good causes and considerations
him unto moving. He the settler doth hereby
transfer unto the Trustees the said precious
gems, jewels, ornaments and other articles
of jewellery and antique pieces specified in
the First Schedule hereunder written and the
said securities specified in the Second
Schedule hereunder written and all which
articles and securities are hereinafter for
brevity’s sake referred to as “the Trust
Property” (which expression shall include
all other properties or investments or any
kind whatsoever into which the same or nay
5
part thereof may be converted or varied
from time to time and such as relay be
acquired by the Trustees or come to their
hands by virtue of these presents) AND all
the right title interest claim and demand
whatsoever at law and in equity of the
Settlor in and to the Trust Property and
every part thereof TO HAVE, RECEIVE,
AND TAKE all and singular the Trust
Property unto the trustees UPON THE
TRUSTS and with subject to the powers,
provisions, agreements and declarations
hereinafter declared and contatined of and
concerning the same.
2. the Trust hereby created shall be called
“H.E.H. The Nizam’s Jewellery Trust”.”
The trustees shall divide the corpus of the principal into sixteen equal
parts and allocate them as following
• Four equal parts to and hold the same for Prince Azam Jha, the eldest
son of the settler in the manner as mentioned in clause 5.
Four such equal parts to and hold the same upon the trust for Prince
•
Muazzam Jah, the second son of the settler in the manner as
mentioned in clause 6.
One such equal part to and hold the same upon the trust for Shabzadi
•
Begum, the daughter of the settler by Dulhan pasha Begum Prince
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Muazzam Jah, the second son of the settlor in the manner as
mentioned in clause 7.
One such equal part to and hold the same upon the trust for Shahbada
•
Nawab Basalat Jha Bahadur the step brother of the settler in the
manner as mentioned in clause 8.
• Three such equal parts to and hold the same upon trust for the sons,
grandsons and granddaughters of the settler as mentioned in Part II of
the third schedule and as mentioned in clause 9
The remaining three equal parts to and hold the same upon trust for
•
the daughters of the settler specified in Part III of the third schedule
to the deed and as mentioned in clause 10.
Clause 9 of the Trust Deed reads as under:
“9. The Trustees shall hold the said three equal
parts of the Principal Fund allocated to the sons,
grandsons and grand daughters of the Settlor
mentioned in part II of the Third Schedule
hereunder written (hereinafter called “the
Remaining Sons’ Fund” UPON TRUST to divide
the same or to treat the same as notionally divided
into 126 (One hundred twenty six) equal units and
to allocate such 126 units to the respective
beneficiaries specified in part II of the Third
Schedule hereunder written in the respective
proportions set opposite their respective names in
the second column of part II of the Third Schedule
hereunder written and to hold the same upon the
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respective Trusts hereinafter declared and
contained of an concerning the same respectively,
viz:
(a) To manage the respective units of the
Remaining Sons’ Fund allocated to each
respective beneficiary as aforesaid and to collect
and to recover the interest and other income (if
any)…
(b) To pay out of the income of the respective
units of the Remaining Sons’ Fund allocated to
each such beneficiary as aforesaid and if necessary
out of the corpus thereof (including the
remuneration payable to the Trustees under the
provisions hereof) which could not be met or
defrayed out of the income or corpus of the said
securities specified in the Second Schedule
hereunder Written.
(c) During the life time of the Settlor to
accumulate and invest the net income (if any)…
(d) From and after the death of the Settlor to
pay the net income of the respective units of the
Remaining Sons’ Fund allocated to each such
beneficiary as aforesaid to each such beneficiary
absolutely for and during the terms of his or her
respective life.
(e) On the death of the survivor of the Settlor
and each Beneficiary leaving a child or children
and/or remoter issue him or her then surviving to
divide and distribute the units of Remaining Sons
Fund allocated to such beneficiary as aforesaid
amongst such child or children and/or remoter
issue of such Beneficiary per strips in the
proportion of two shares for every male child or
remoter issue of such Beneficiary to one share for
every female child or remoter issue of such
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Beneficiary tending in the same degree of
relationship and so that no person shall take whose
parent entitled to share under this clause shall be
living and further so that persons standing in the
same degree of relationship shall take between
themselves in the same proposition as above the
share which their parent would have taken if living
provided, however, that if any of the first thirteen
beneficiaries specified in the Part II of the third
schedule hereunder written (i.e. Beneficiaries
other than 7(seven) grandchildren of the Settlor
specified in item 14 of Part II of the Third
Schedule hereunder written) shall die without
leaving any child or remoter issue him surviving
then the Trustees shall on his death hold the units
of the Remaining Sons’ Fund allocated to such
beneficiary as aforesaid UPON TRUST to divide
the same into two equal parts and to allocate one
such equal part to the remaining beneficiaries
specified in Part II of the Third Schedule
hereunder written ( including 7(seven)
grandchildren of the Settlor specified in item 14 of
Part II of the Third Schedule hereunder written).
In the shares and the proportions mentioned
against their respective names in second column
thereof and to allocate the other such equal part to
the daughters of the Settlor specified in the part III
of the Third Schedule hereunder written in equal
shares and proportions and to hold and stand
possessed of the respective shares which on such
division and allocation shall go through respective
beneficiaries specified in Parts II and III of the
Third Schedule hereunder written Upon Trust to
add the same to and amalgamate the ame with the
respective units of the Remaining Sons’ Fund or
the Remaining Daughters’ Fund hereinafter
referred to (as the case may be) originally
allocated to them respectively under the provisions
of this clause and the next succeeding clause 10
hereof provided further that if any of the said
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seven grandchildren of the Settlor specified in
item 14 of Part II of the Third Schedule hereunder
written shall die without leaving any child or
remoter issue him or her surviving then the
Trustees shall on his or her death hold the units of
the Remaining Sons’ Fund allocated to such
grandchildren of the Settlor as aforesaid UPON
TRUST to divide the same in the proportions in
which the units of the Remaining Sons’ Fund are
allocated to the remaining grandchildren of the
Settlor as specified against the respective names in
the second column of the Part II of the Third
Schedule hereunder written and to hold and stand
possess of the respective shares which on such
division shall go to the respective grandchildren
specified in item 14 of Part II of the third Schedule
hereunder written UPON TRUST to add the same
and amalgamate the same with the respective units
of the Remaining Sons’ Fund originally allocated
to them respectively upon the same respective
trustees as those upon which the respective
original units to which they are added and with
which they are amalgamated as aforesaid or
directed to be held under the provisions of this
clause.”
In terms of Clause 10 of the Trust Deed, remaining daughters’ fund is
constituted and the manner in which the said fund is to be discharged is
contained therein; the relevant part whereof reads as under:
“(e) …provided however, that if any daughter of
the Settlor specified in Part III of the Third
Schedule hereunder written shall die without
leaving any child or remoter issue her surviving
then the Trustees shall on her death hold the one
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equal unit of the Remaining Daughters’ Fund
allocated to such daughter as aforesaid UPON
TRUST to divide the same into two equal parts
and to allocate one such equal part to the
remaining beneficiaries specified in Part III of the
Third Schedule hereunder written in equal shares
and proportions and to allocate the other such
equal part to the Beneficiaries specified in Part II
of the Third Schedule hereunder written (including
the 7 grandchildren of the Settlor therein
specified) in the proportions in which the units of
the Remaining Sons’ Fund are allocated to the
respective beneficiaries specified in Part II of the
Third Schedule hereunder written as specified
against their respective names in the second
column thereof and to hold and stand possessed of
the respective shares which on such division and
allocation shall go to the respective beneficiaries
specified in parts II & III of the Third Schedule
hereunder written UPON TRUST to add the same
to and amalgamate the same with the respective
units of the Remaining Sons’ Fund or the
Remaining Daughters’ Fund (as the case may be)
originally allocated to them respectively under the
provisions of the preceding clause (9) hereof and
this Clause and to hold the same respectively upon
the same respective units as those upon which the
respective original units to which they are added
and with which they are amalgamated as aforesaid
are directed to be held under the provisions of the
preceding clause 9 hereof and this clause.”
Clause 11 is a residuary clause providing for the manner in which the
trust is to be applied in respect of the ultimate beneficiaries.
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ENACTMENT
The State enacted the Nizam’s Trust Deeds (Validation) Act, 1950
(for short “the 1950 Act”). It received the Presidential Assent on
22.06.1950. Section 3 of the 1950 Act provides that notwithstanding
anything contained in any other law for the time being in force, trust deed
mentioned in the Schedule shall be valid and effectual for all purposes and
shall have the force of law. The 1950 Act underwent an amendment in the
year 1951. The trust deed in question was inserted as Item No. 7 in the
Schedule of the 1950 Act.
BENEFICIARIES
The trust deed mentions 13 beneficiaries in Part II. Indisputably,
beneficiaries at Sl Nos. 1 to 5, 7, 8, 11 and 12 have died and the corpus of
their respective shares, in terms of the deed of trust, have devolved upon
their heirs and successors including the appellants of Civil Appeal No. 846
of 2001, following stirpital succession. Beneficiaries at Sl Nos. 9, 10 and
th
13, however, are alive and the 6 beneficiary has died issueless.
12
So far as the beneficiaries specified in Part III are concerned, they are
17 in number. The beneficiaries at Sl Nos. 2, 4, 5, 7, 12 and 15 have died
and their heirs and legal representatives including the appellants herein have
succeeded to their units. Those at Sl Nos. 1, 6, 8, 9, 10, 11, 13 and 14 have
died without any issue. The beneficiaries at Sl Nos. 3, 16 and 17 are alive.
PROCEEDINGS
Indisputably, the appellants filed an original petition No. 173 of 1998
in the Court of Chief Judge, City Civil Court, Hyderabad purported to be
under Sections 56 and 61 of the Indian Trusts Act, 1882 praying for
directions to the trustees to execute the trust deed as per the correct
interpretation of clauses 9, 10 and 11 of the trust deed.
Respondent No. 1 also filed an original application before the Chief
Judge, City Civil Court which was marked as Original Petition No. 253 of
1998 seeking directions to the trustees to execute trust deed according to the
terms contained therein.
In the same year, some of the children of the remaining sons and
daughters who predeceased those remaining sons and daughters who died
13
issueless like the appellants herein filed a suit which was marked as O.S.
No. 383 of 1998 praying inter alia for the following reliefs:
“(1) Mandatory injunction against the Trustees
to correctly interpret and apply the provisions of
clause 8 of the Trust Deed by making all
allocations and amalgamations of Trust funds
concerned therein including in the same all
beneficiaries named in the parties 2 and 3 of III
Schedule irrespective of whether they pre-
deceased the beneficiaries dying issueless or not,
and thereafter allocate their shares to their legal
heirs in accordance with law,
(2) Issue a perpetual injunction against the
trustees restraining them mis-interpreting or
wrongly applying the provisions of clauses 8 to 10
of the Trust Deed, or
(3) Restraining the trustees from making
allocations or amalgamations of Trust Funds
concerned and making any payments, without
giving two weeks advance notice to plaintiffs.”
Forty similarly placed children of the deceased sons and daughters
filed another suit which was marked as O.S. No. 540 of 1998 for declaration
that they have vested rights in the corpus and accretion of the ‘remaining
sons fund’ to the extent of Rs. 2,22,99,200/-.
14
In the aforementioned suit, heirs and legal representatives of the
grand children of the settler were impleaded as parties.
In the said suit, the following three issues were framed:
“1. Whether the plaintiffs are entitled for
declaration in respect of the corpus fund as prayed
for?
2. Whether the plaintiffs are entitled for
mandatory injunction against the defendants and
their successor trustees and secretary of the
defendant no. 1 Trust, as prayed for?
3. Whether the plaintiffs are entitled for
perpetual injunction against the defendants and
their successor trustees and secretary of the
defendant no. 1 Trust, as prayed for.”
The aforementioned two original petitions as also the suits were taken
up for hearing together. In the said original petitions as also the said suits a
preliminary question was raised as to whether the surviving remaining sons
and daughters of the Settlor are alone entitled to the corpus allotted to the
remaining sons and remaining daughters who died issueless. The learned
Judge passed a common judgment on 21.07.1999.
FINDINGS
15
The principal findings of the learned Judge were:
(i) “Coming back to the interpretation of sub-clause (e) of clauses 9
and 10, it can be held that the Settlor intended that even the
children of a pre-deceased remaining son of a remaining daughter
are entitled to a share in the unit allocated to the remaining son or
daughter who died issueless. The reason is that, an absurd
situation would arise if the contentions of the Trustees that
surviving remaining sons and remaining daughters are only
entitled to a share is accepted, if the last person who die is a
issueless a remaining son and remaining daughter…”
(ii)
“A reading of the said Clause discloses that the Settlor intended
that the entire Principal Fund obtained by the sale of the jewellery
should be handed over and transferred to the beneficiaries or
ultimate beneficiaries named in the Trust Deed….In the same way,
the children of the remaining sons and remaining daughters are
ultimate beneficiares of the units allocated to the respective
remaining sons or remaining daughters…”
(iii) “The argument of the Trustees, that the children of the remaining
sons and remaining daughters are not beneficiaries at all and that
they are owners consequent upon the death of the remaining sons
or remaining daughters, is not contemplated by the Settlor, as he
referred to such grand children as “ultimate respective
beneficiaries” who are entitled to receive the main corpus itself as
per the directions in the Trust Deed in clause 11 of the Trust
Deed.”
(iv)
“…The Settlor directed in sub-clause 4 and 5 (numbered by me) in
clause 9(e) that the units allocated to the remaining son who died
issueless shall be divided into (2) parts and to allocate one such
rd
part to the remaining beneficiaries specified in Part - II of the 3
Schedule including grandchildren in the shares and proportions
mentioned against their respective names in the second column
thereof and to allocate the other such part to the daughters of the
settlor specified in part – III of the Third Schedule hereunder
written, in the equal shares and proportions. Similarly, the
direction is repeated for clause 10(e). This direction can be
16
implemented only if the contention of the children of deceased
remaining sons and daughter is accepted. Then only the units
allocated to the deceased remaining sons or remaining daughters
can be distributed in shares and proportions as mentioned against
their respective names in the second column thereof. If the
interpretation of Trustees and surviving remaining sons and
daughters is accepted, this direction of the Settlor cannot be
implemented, for the reasons that consequent upon death, some of
the remaining sons and daughters, there cannot be 126 units in
Part II or 17 units in part – III”.
(v) “…The Settlor did not use the word “remaining daughters” in
clause 9(e) or “remaining sons or grand children” in clause 10(e)
…”
On the plea that nothing is left to be amalgamated in case of units of
predeceased sons and daughters as the corpus was already given to them,
the learned Judge noted:
(a) Some of the surviving sons and daughters have also taken the
entire corpus by adopting the novel method by means of a
compromise between the life estate holder and the remainder estate
holder,
(b) Few lakhs of rupees from out of the units allocated to each of
the remaining son or daughter who died wereretained by the Trustees.
The learned Judge held:
17
“In the result, it is held that whenever anyone of
the remaining sons or remaining daughters, dies
issueless, the unit allocated to him or her, as the
case may be, shall be distributed amongst the
surviving remaining sons and remaining daughters
as well as the respective children of the deceased
remaining sons and remaining daughter and also to
7 grandchildren shown in item 14 of the part II of
third schedule or their children as per the units
allocated to them. The surviving remaining sons
and daughter and persons shown in item 14 can
only receive net income on the amount
amalgamated to their units whereas the respective
children of the deceased remaining sons and
remaining daughters, as the case may be, are
entitled to receive the total amount, corpus and
accretions allocated to their respective father or
mother as the case may be , as per direction given
in clauses 9 (e) and 10 (e) of the trust Deed.”
The learned Judge issued the following directions:
“…This advice is given to the Trustees in OP
173/1998 and OP 253/1998 and this finding is
given on preliminary point in OS 383/1998 and
OS 540/1998…”
Indisputably, pursuant to or in furtherance of the said directions, no
decree was prepared in the O.S. No. 540 of 1998.
PROCEEDINGS BEFORE THE HIGH COURT
18
Aggrieved by and dissatisfied with the judgment and order dated
21.07.1999, Respondent Nos. 1 and 2 in Civil Appeal No. 846 of 2001 and
Respondent No. 2 in Civil Appeal No. 847 of 2001 filed civil revision
petitions before the High Court under Article 227 of the Constitution of
India and Section 115 of the Code of Civil Procedure. However, the
purported common order so far as it related to the preliminary issue in the
two suits was not challenged. The High Court by reason of the impugned
judgment held:
“(i) The impugned order is the common order
passed in two O.Ps i.e., O.P. No. 173 of 1998 and
O.P. No. 253 of 1998 and the two suits as
preliminary issues. Although the order insofar as
it relates to the two O.Ps. is bad for want of
necessary jurisdiction, the order in so far as it
relates to the preliminary issues in the two suits is
concerned is unquestionable on the point of
jurisdiction…”
(ii) “…The petitioners who preferred these two
revision petitions have surprisingly not filed
appropriate proceedings as against the order
pertaining to the two suits. In that view of the
matter, the common order becomes unassailable
except holding that the original petitions are not
maintainable.”
Despite the aforementioned findings, the High Court proceeded to
consider the merit of the matter holding:
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“(i) “…The various legal pleas thus raised by
the learned counsel for the petitioners attacking
the Trust deed and the Nizam’s trust Deeds
Validation Act and the Validation Amendment Act
are therefore not tenable and cannot be
countenanced”.
(ii) “…In both these cases, suits ought to have
been filed under Section 9 of the Civil Procedure
Code before the appropriate courts, but not the
original petitions before the Principal Civil Court
of original jurisdiction. The position is clear and
both the petitions cannot be maintained under
Section 56 and 61 of the Trusts Act…”
(iii) “…The intention of the settler as discussed
supra is not to allow the property to percolate to
the other persons or to other successors either
nearer or remoter except those specified…”
(iv) “…As discussed by me supra, in the
absence of the words ‘specified in the schedule’
there should have been some scope for any
interpretation, but in the presence of the words
‘specified in the schedule’, I do not think that
there is any scope for any interpretation than the
one, which is consistent with the view taken by me
above…The view taken by the court below, for the
above reasons, is not correct legal and proper and
is, therefore, liable to be set aside…”
PROCEEDINGS BEFORE THIS COURT
20
Appellants preferred Special Leave Petition Nos. 4372-4373 of 2000
which came up for preliminary hearing on 27.03.2000, on which date a
Division Bench of this Court ordered:
“Adjourned for two weeks as learned senior
counsel for the respondents says that he wants to
challenge the impugned order of the High Court so
far their O.P. is held to be not maintainable.”
Pursuant to or in furtherance of the said observations, the respondents
in C.A. Nos. 846-847 filed special leave petitions against the order of the
High Court and they upon grant of leave were marked as C.A. No. 848 of
2001 and 849 of 2001.
Two special leave petitions were also filed before this Court by the
respondents, questioning the correctness or otherwise of the order dated
21.07.1999 passed by the learned Chief Judge, City Civil Court, Hyderabad.
These were eventually marked as C.A. Nos. 850-851 of 2001.
SUBSEQUENT EVENTS
21
The preliminary issue in O.S. No. 540 of 1998 having already been
decided, the other issues framed therein which appeared to be consequential
in nature were determined by the Chief Judge, City Civil Court by an order
dated 3.04.2000 decreeing the suit declaring that the plaintiffs have vested
rights in the corpus and accretion of the remaining sons fund and remaining
daughters fund.
Indisputably, an appeal, which was marked as CCA No. 114 of 2000,
was preferred thereagainst by the trustees. A Civil Miscellaneous Petition,
which was marked as CMP No. 11230 of 2000, has also been filed.
Concededly, the said appeal and the civil miscellaneous petition are
pending.
By an order dated 6.07.2000, the High Court directed that the
aforementioned decree dated 3.04.2000 of the City Civil Court shall not be
given effect to pending notice.
This Court by an order dated 10.04.2000 issued notices in the special
leave petitions filed by the respondents.
22
By an order dated 21.01.2000, special leave to appeal has been
granted, observing:
“pending the disposal of the appeal, the High court
may proceed to hear and dispose of CCA No. 114
of 2000 but it shall do so independently and
uninfluenced by the judgment and order under
challenge insofar as it deals with the merits.”
SUBMISSIONS
Mr. P.P. Rao, learned senior counsel appearing on behalf of the
appellant, would raise the following contentions:
(i) Whether in view of the fact that the civil revision applications
were filed against the order dated 21.07.1999 passed in original
applications which having been found to be not maintainable, the
High Court should have held that the civil revision petitions were
also not maintainable.
(ii) Respondents having not filed any appeal or civil revision
application against the order dated 3.04.2000 passed in the
23
original suits filed by the appellants, the respondents would be
deemed to have abandoned the remedies available to them.
(iii) The High Court could not have entered into the merits of the
matter as no appeal or civil revision application having been filed
against the common order passed in original suit Nos. 348 and 540
of 1999, they attained finality and, thus, the civil revision
applications filed against the order dated 21.07.1999 passed
against the applications were barred by the principles of res
judicata. Reliance in this behalf has been placed on C.V.
Rajendran and Another v. N.M. Muhammed Kunhi [(2002) 7 SCC
447].
(iv) In any event, interpretation of the deed of trust being a question of
law, the civil revision application under Section 115 of the Code
of Civil Procedure or under Article 227 of the Constitution of
India was not maintainable.
(v) The preliminary issue having the force of a decree, an appeal lay
thereagainst and, thus, a revision application under Section 115 of
the Code of Civil Procedure and/ or Article 227 of the
Constitution of India was not maintainable.
24
(vi) As the civil revision application in terms of Section 115 of the
Code of Civil Procedure was not maintainable, the provisions of
Article 227 of the Constitution of India could not have been taken
recourse to. Reliance in this behalf has been placed on Ouseph
Mathai and Others v. M. Abdul Khadir [(2002) 1 SCC 319]
(vii) No special leave petition is maintainable against the original order
dated 21.07.1999 of the Chief Judge, City Civil Court, Hyderabad
as by reason thereof the High Court has been by-passed. Reliance
in this behalf has been placed on Chandi Prasad Chokhani v. State
of Bihar [(1962) 2 SCR 276 and Taherakhatoon (D) By LRs. v.
Salambin Mohammad [(1999) 2 SCC 635].
(viii) In view of the finding of the High Court that the original
applications under the Indian Trusts Act were not maintainable, it
acted illegally and without jurisdiction in entering into the merit of
the matter and, thus, the impugned judgment is a nullity.
(ix) On merits, the High Court committed a serious error in passing the
impugned judgment insofar as it failed to construe the principles
of construction of a trust deed by placing itself in the armchair of
the settlor.
25
(x) The settlor having intended to provide some property not only to
the sons and daughters and the grand-children who are alive could
not have intended to deprive heirs and legal representatives of
those who had died issueless.
(xi) The trustees in implementing the deed of trust could not have
ignored a well thought of scheme of the settlor in terms whereof
he intended to make no discrimination between the heirs and legal
representatives and by reason whereof, he intended to make
provisions not only for the children and grand-children who were
then alive but also for the grand-children and great-grand children
who were yet to be born.
(xii) From a perusal of the deed of trust, it would be evident that
wherever the settlor intended to grant special benefit either to a
heir or to a trust, he having specifically provided therefor. Having
regard to the fact that the heirs and legal representatives of the
deceased’s son or daughter having not been excluded, the High
Court could not have interfered with the well-reasoned findings of
the Chief Judge, City Civil Court.
26
(xiii) The principle in the original applications as also the suits being
primarily directed against the trustees, the heirs and legal
representatives of the daughters were required to be impleaded.
Mr. Dushyant A. Dave, learned senior counsel appearing on behalf of
the respondents, and Mr. Rajendra Choudhary, learned counsel appearing
on behalf of the trustees, on the other hand, would contend:
(i) the trust deed being a deed of gift based on inheritance or
otherwise, the application before the City Civil Court was not
maintainable.
(ii) The settlor having executed the Will in three parts. Each part
dealing with specific matters contained in the Second Schedule,
the Third Schedule and the Residuary and having provided for the
specific manner in which the benefit is to be conferred as also
mode of discharge, the High Court must be held to have justified
in arriving at a finding in regard to the intention of the settlor.
(iii) The settlor having used the term “allocate” in a number of places,
the construction which would be contrary to or inconsistent
therewith should be avoided.
27
(iv) The deed of trust having operated during the period 1952 to 1958
to the satisfaction of all those beneficiaries who have died
issueless after 1958, the heirs and legal representatives could not
have been given any benefit as by that time the corpus of the trust
had clearly been divided.
(v) As clauses 9(e) and 10(e) of the deed specifically provided that
when a beneficiary dies, his children would get the same; the
children of beneficiaries who have already been pre-deceased
cannot be held to have derived any interest in the corpus of trust or
otherwise.
(vi) So far as the daughters are concerned, the point of devolution of
interest should be kept in mind as in case of death of one daughter
her share goes to children but the same would not be the position
when the daughter of a daughter dies.
(vii) Having regard to the rival contentions of the parties and the
decisions of the Trial Judges whereby discretionary jurisdiction in
terms of Sections 56 and 61 read with Section 34 of the Indian
Trusts Act which have limited application having not been
exercised, the High Court should not have interfered therewith.
28
(viii) The findings on the suit being subject to passing of a decree, a
civil revision application against the order dated 21.07.1999 was
maintainable.
(ix) The trust deed should be construed in a manner so as to achieve a
certainty, as provided for under Section 6 of the Indian Trusts Act
read with illustrations (c) and (d) appended thereto.
(x) Respondents being the children of the predecessor-in-interest and
daughters having got the benefits cannot claim any benefit once
over again on the ground that they were also entitled as heirs and
legal representatives of the pre-deceased sons and daughters who
had died issueless.
(xi) Special leave having been granted, in the peculiar facts and
circumstances of this case, this Court should exercise its
discretionary jurisdiction under Article 139A of the Constitution
of India and render a final decision in the matter keeping in view
the passage of time.
(xii) Article 136 of the Constitution of India should be widely
construed so as to take into consideration a situation of this nature
where a litigation based on construction of a deed may finally be
adjudicated upon by this Court.
29
(xiii) As no decree had been passed in the suit, it would not be correct to
contend that the preliminary question raised would be a
preliminary issue as envisaged under Order XIV, Rule 1 of the
Code of Civil Procedure.
(xiv) Once a leave has been granted, any decision rendered thereon
could attract the doctrine of merger as has been held by this Court
in Kunhayammed and Others v. State of Kerala and Another
[(2000) 6 SCC 359].
OUR FINDINGS
The learned Trial Judge and the High Court adopted two different
principles of interpretation of the trust deed. Whereas the learned Trial
Judge applied the principle of contextual interpretation, the High Court
applied the principle of literal interpretation.
It is, however, not in dispute that an appeal as also civil revision
application are pending before the High Court. We could have entered into
the merit of the matter to determine the question as regards interpretation of
the Will one way or the other but keeping in view the fact that the
aforementioned proceedings are pending before the High Court, we as at
present advised are not inclined to do so.
30
The High Court opined that the civil revision applications filed
against the order dated 21.07.1999 were not maintainable. It is also not in
dispute that no appeal was preferred against the order dated 3.04.2000.
The findings rendered in the order dated 21.07.1999 did not amount
to a decree. The suit was not finally disposed of thereby. No appeal lay
against a mere finding. An appeal would be maintainable only when a
decree is passed. The matter might have been otherwise if a decree was to
be recorded formally pursuant to the decision so rendered. It was not
considered to be even an order passed in terms of Order XIV, Rule 2 of the
Code of Civil Procedure.
Once the civil revision applications were held to be not maintainable
ordinarily the High Court should not have entered into the merit of the
matter.
It is true that preliminary issues were decided by an order dated
21.07.1999. It is, however, not in dispute that as several other issues were
framed including the additional issues, which we have noticed hereinbefore,
31
in terms whereof the suit was ultimately decreed by a judgment and order
dated 3.04.2000, an appeal thereagainst has been filed. A civil
miscellaneous application has also been filed.
A decree was not passed pursuant to or in furtherance of the order
dated 21.07.1999. It may be true that in terms of Section 105 of the Code of
Civil Procedure when an appeal against the final decree is passed, legality
of the said order could be challenged in the appeal. Only because a civil
revision application has not been filed, the same, in our opinion, would not
attract the principle of res judicata as an appeal from the final decree could
still be maintained.
In C.V. Rajendran (supra), while holding that the principle of res
judicata applies in different stages of the same proceedings, it was held:
“…Here what is sought to be reagitated is not
really the order of remand but the order deciding a
germane issue which was allowed to become final
at an earlier stage of the same suit. The principle
of res judicata applies as between two stages in the
same litigation so that if an issue has been decided
at an earlier stage against a party, it cannot be
allowed to be reagitated by him at a subsequent
stage in the same suit or proceedings. This
32
position is laid down in Hope Plantations Ltd. v.
Taluk Land Board to which one of us (Syed Shah
Mohammed Quadri, J.) was a party.”
However, as noticed hereinbefore, in this case, an appeal from a final
decree is maintainable.
Ordinarily again a special leave petition would not be entertained
directly from a judgment and order of the Chief Judge, City Civil Court,
Hyderabad. [See Chandi Prasad Chokhani (supra)]
Maintainability of the civil revision application has been questioned
inter alia on the premise that an interpretation of a deed involves a question
of fact and not a question of jurisdiction.
Mr. Rao has placed strong reliance in this behalf on M/s. D.L.F.
Housing and Construction Company (P.) Ltd., New Delhi v. Sarup Singh
and Others [(1969) 3 SCC 807]. In that case, it was held:
“5. The position thus seems to be firmly
established that while exercising the jurisdiction
under Section 115, it is not competent to the High
33
Court to correct errors of fact however gross or
even errors of law unless the said errors have
relation to the jurisdiction of the Court to try the
dispute itself. Clauses (a) and (b) of this section on
their plain reading quite clearly do not cover the
present case. It was not contended, as indeed it
was not possible to contend, that the learned
Additional District Judge had either exercised a
jurisdiction not vested in him by law or had failed
to exercise a jurisdiction so vested in him, in
recording the order that the proceedings under
reference be stayed till the decision of the appeal
by the High Court in the proceedings for specific
performance of the agreement in question. Clause
(c) also does not seem to apply to the case in hand.
The words “illegally” and “with material
irregularity” as used in this clause do not cover
either errors of fact or of law; they do not refer to
the decision arrived at but merely to the manner in
which it is reached. The errors contemplated by
this clause may, in our view, relate either to breach
of some provision of law or to material defects of
procedure affecting the ultimate decision, and not
to errors either of fact or of law, after the
prescribed formalities have been complied with.
The High Court does not seem to have adverted to
the limitation imposed on its power under Section
115 of the Code. Merely because the High Court
would have felt inclined, had it dealt with the
matter initially, to come to a different conclusion
on the question of continuing stay of the reference
proceedings pending decision of the appeal, could
hardly justify interference on revision under
Section 115 of the Code when there was no
illegality or material irregularity committed by the
learned Additional District Judge in his manner of
dealing with this question. It seems to us that in
this matter the High Court treated the revision
virtually as if it was an appeal.”
34
Reliance has also been placed by Mr. Rao on Ouseph Mathai (supra)
wherein it was held:
“…In fact power under this article casts a duty
upon the High Court to keep the inferior courts
and tribunals within the limits of their authority
and that they do not cross the limits, ensuring the
performance of duties by such courts and tribunals
in accordance with law conferring powers within
the ambit of the enactments creating such courts
and tribunals. Only wrong decisions may not be a
ground for the exercise of jurisdiction under this
article unless the wrong is referable to grave
dereliction of duty and flagrant abuse of power by
the subordinate courts and tribunals resulting in
grave injustice to any party.”
A civil revision application although must necessarily having regard
to the terminologies used in Section 115 of the Code of Civil Procedure
involve the question of jurisdiction, the question which would arise is as to
what are the jurisdictional questions. A jurisdictional question may arise
not only when a court acts wholly without jurisdiction but also in a case
where jurisdictional errors are committed while exercising jurisdiction.
There are various facets of ‘jurisdictional errors’. Taking into consideration
any irrelevant fact or non-consideration of a relevant fact would involve
35
jurisdictional issue. This aspect of the matter has also been considered in
Ajantha Transports (P) Ltd., Combatore v. M/s. T.V.K. Transports,
Pulampatti, Combatore District [(1975) 1 SCC 55] in the following terms:
“27. Relevancy or otherwise of one or more
grounds of grant or refusal of a permit could be a
jurisdictional matter. A grant or its refusal on
totally irrelevant grounds would be ultra vires or a
case of excess of power. If a ground which is
irrelevant is taken into account with others which
are relevant, or, a relevant ground, which exists, is
unjustifiably ignored, it could be said to be a case
of exercise of power under Section 47 of the Act,
which is quasi-judicial, in a manner which suffers
from a material irregularity. Both will be covered
by Section 115 of the Civil Procedure Code.”
It is not correct to contend that even if the revisional jurisdiction is
not available, a remedy in terms of Articles 226 and 227 of the Constitution
of India would also not be available in law. This aspect of the matter has
been considered by this Court in Surya Dev Rai v. Ram Chander Rai and
Others [(2003) 6 SCC 675] opining that not only the High Court can
exercise its supervisory jurisdiction for the purpose of keeping the
subordinate courts within the bounds of its jurisdiction as envisaged under
Article 227 of the Constitution of India; even a writ of certiorari can be
36
issued wherefor the subordinate or inferior courts would be amenable to the
superior courts exercising power of judicial review in terms of Article 226
thereof.
Strong reliance has been placed by Mr. Rao on a decision of this
Court in Taherakhatoon (supra) wherein it was opined that the discretionary
jurisdiction of this Court under Article 136 of the Constitution of India can
be denied even after grant of leave unless exceptional and special
circumstances exist that substantial and grave injustice has been done. It
was held:
“20. In view of the above decisions, even
though we are now dealing with the appeal after
grant of special leave, we are not bound to go into
merits and even if we do so and declare the law or
point out the error — still we may not interfere if
the justice of the case on facts does not require
interference or if we feel that the relief could be
moulded in a different fashion…”
There is no quarrel with the aforementioned proposition, but, as has
been noticed in that case itself the discretionary jurisdiction is to be
37
exercised keeping in view the fact and circumstance of each case and no
hard and fast rule can be laid down therefor.
There is another aspect of the matter which cannot also be lost sight
of. Applications were filed before the District Court also under Sections 56
and 61 of the Indian Trusts Act praying for issuance of directions to the
trustees. Such directions if issued ordinarily would be binding on them.
The trustees, therefore, would be entitled to take recourse to a remedy
available before a superior court, if they are aggrieved by such direction. If
the High Court had the jurisdiction to entertain either an appeal or a revision
application or a writ petition under Articles 226 and 227 of the Constitution
of India, in a given case it, subject to fulfillment of other conditions, could
even convert a revision application or a writ petition into an appeal or vice-
versa in exercise of its inherent power. Indisputably, however, for the said
purpose, an appropriate case for exercise of such jurisdiction must be made
out.
Furthermore, this trust deed is not an ordinary one. It is a part of a
statute. In the case of a wrong interpretation of a statute relating to
jurisdiction of a court enabling it to issue a direction, it would amount to a
38
jurisdiction error. In that sense, the courts were required to exercise their
jurisdiction with more care and caution.
For the reasons aforementioned, we are of the opinion that interest of
justice would be subserved if the matters are directed to be considered
afresh by the High Court together with the pending appeal and
miscellaneous applications. The special leave petitions filed before us
against the order dated 21.07.1999 shall be returned to the petitioners
thereof so as to enable them to re-file the same before the High Court which
may also be considered on its own merits. We pass these directions in
exercise of our power under Article 142 of the Constitution of India. These
appeals are disposed of accordingly.
For the aforementioned observations and directions, we would
request the High Court to consider the desirability of disposing of the matter
as expeditiously as possible. No costs.
………………………….J.
[S.B. Sinha]
..…………………………J.
39
[Cyriac Joseph]
New Delhi;
March 05, 2009