N.A Mohammed Kasim (Dead) By Lrs. And Another v. Sulochana And Others

S.B Majmudar, J.— In this civil appeal the appellants, who are original defendants 1 and 2 in Original Suit No. 52 of 1963 in the Court of the Subordinate Judge, Kumbakonam, have brought in challenge the decision rendered by learned Single Judge of the Madras High Court, V. Ramaswami, J. in Second Appeal No. 195 of 1969 which was allowed by the learned Judge and the suit of the respondent-plaintiffs 1 and 2 was decreed.

2. A few relevant facts leading to this appeal deserve to be noted at the outset.

3. Respondents 1 and 2 filed the aforesaid suit for a declaration that two sale deeds executed by Respondent 3 herein who was the father-in-law of plaintiff 1 and grandfather of plaintiff 2 were null and void and not binding on the plaintiffs. Those sale deeds were executed by defendant 3 in favour of the present appellants who were original defendants 1 and 2. The contention of the plaintiffs was that a trust was created in favour of the plaintiffs by defendant 3 in connection with the suit lands and in breach of that trust defendant 3 had sold the lands to the defendant-appellants 1 and 2. For the sake of convenience we shall refer to the parties as original plaintiffs and defendants. The first plaintiff is the wife of the fourth defendant and the second plaintiff is the daughter of the first plaintiff and defendant 4. The marriage between the first plaintiff and the fourth defendant took place some time in April 1955. The fourth defendant was considered to be wanting in worldly wisdom and fickle-minded. Even before the marriage was settled the sixth defendant who is the father of the plaintiff required the third defendant who is the father of the fourth defendant to settle substantial portion of the properties on the fourth defendant and the first plaintiff if he were to give his daughter in marriage to the fourth defendant. The third defendant agreed and the marriage was settled. After the marriage finding that the third defendant was not settling the properties as agreed to earlier, the sixth defendant was taking all steps to persuade defendant 3 to settle properties for the first plaintiff as promised. The first three items of the plaint schedule which were wet lands in Ullur Vattam of Thanjavur District which belonged to the third defendant were in the possession and cultivation of the sixth defendant. Since the third defendant had not settled any property on the first plaintiff as promised to the sixth defendant he appeared to have set up certain claims as against the third defendant as cultivating tenant in respect of these lands in his possession. Thereafter the third defendant filed a petition before the revenue court against the sixth defendant for eviction and recovery of possession. In these eviction proceedings, they filed what is termed a memorandum of compromise. As required by one of the clauses in this agreement defendants 7 and 8 were appointed as power of attorney agents by the third defendant for the purpose of selling the suit lands and carrying out the directions as contained in the document. Though this power of attorney was specifically mentioned as non-revocable, the third defendant by registered notice dated 4-9-1959 revoked the power of attorney. Thereafter on 24-10-1959, he executed two sale deeds conveying the suit lands in favour of the first and the second defendants. The suit was filed on the ground that the compromise memo filed in the revenue court treated a trust in respect of the suit lands conferring a beneficial interest on the plaintiffs and that therefore the third defendant had no right to sell the same and any such sale executed by him was void and inoperative.

4. The case of the contesting defendants, present appellants, was that no trust was created in favour of the plaintiffs by the said compromise and power of attorney. Consequently, the sale deeds in their favour were not invalid or inoperative in law. The trial court as well as the appellate court construed the memorandum of compromise and the power of attorney and took the view that no trust was created by these documents in favour of the plaintiffs and hence the suit was dismissed. In second appeal taken out by the plaintiffs, as noted earlier, the learned Judge took a contrary view. According to the learned Judge the intention of the parties was that the third defendant shall not claim full ownership in respect of one-half of the suit lands and that should be given for the benefit of the fourth defendant and the first plaintiff. The memorandum of compromise and the power of attorney executed read together established that the third defendant was holding one-half of the suit lands as and from the date of memorandum of compromise only as a trustee for the benefit of the fourth defendant and his wife the first plaintiff. It was further held that on the terms of the agreement all the requirements of Sections 5 and 6 of the Indian Trusts Act were satisfied. In the result the second appeal was allowed. The decrees and judgments were set aside and the suit was decreed as prayed for but without costs.

5. In this appeal by special leave the learned counsel for the appellants vehemently contended that the learned Single Judge of the High Court had patently erred in law in taking the view that the memorandum of settlement and the power of attorney executed by defendant 3 in favour of defendants 7 and 8 created a trust in favour of the plaintiff-respondents 1 and 2 herein. That so far as suit lands were concerned no trust was created by these documents in favour of the plaintiffs and consequently the suit was liable to be dismissed as held by the trial court and the appellate court. Learned counsel for the respondent-plaintiffs on the other hand tried to support the decree of the High Court in second appeal.

6. Having given our anxious consideration to the rival contentions we find that the judgment under appeal cannot be sustained in law. When we turn to the documents, Exts. A-1 and A-2, the memorandum of settlement and power of attorney, we find that thereby no trust express or constructive was created by defendant 3 in favour of the present plaintiffs. So far as Ext. A-1, memorandum of settlement dated 24-6-1959 before the revenue court, Kumbakonam, is concerned all that it states is that the lands mentioned in the petition which are the suit lands shall be released by defendant 6, father of plaintiff 1 when it is sold by defendants 7 and 8 who are the power of attorney holders. Out of the sale consideration received, Rs 1200 was to be paid for discharging the liability of defendant 3 towards the debt due to one Advocate, Mr R. Kandaswamy Moopanar. Out of the balance one-half of the amount would be paid to defendant 3 by his agents, namely, defendants 7 and 8, from the remaining other half land was to be purchased for defendant 3 at his cost in the village mentioned by defendant 3. The said property so purchased and also the house at Salyat Street, Thaiyur would be given to defendant 3's son Krishnamurthi, defendant 4 after the life of defendant 3 under a settlement deed to be executed. Accordingly the power of attorney Ext. A-2 was executed on 4-7-1959 by defendant 3 in favour of defendants 7 and 8 herein. In the power of attorney it has been stated that defendants 7 and 8 were authorised to sell the nanja lands and out of the consideration one-half was to be paid to defendant 3 and with the balance amount land had to be purchased in his name at his village mentioned by him and to deliver the possession to him. A conjoint reading of these two documents makes it clear that defendants 7 and 8 as power of attorney holders were to sell the suit lands on behalf of defendant 3 and out of the consideration what was left after discharging the dues payable to the Advocate, Shri Kandaswamy Moopanar, was to be utilised by paying 50% to defendant 3 and from the remaining 50% of the balance of consideration some land which defendant 3 indicated was to be purchased by his power of attorney holders for him. It is true that the lands to be purchased by these power of attorney holders were to be given to defendant 4, son of defendant 3 after the life of defendant 3. But nowhere it is indicated or even whispered that the said transaction was for the benefit of the wife of defendant 4, namely, plaintiff 1 or his minor daughter, plaintiff 2. There is neither any express trust nor any constructive trust in favour of the plaintiffs so far as the aforesaid two documents are concerned. Learned counsel for respondent-plaintiffs placing reliance on the decisions in Nawab Khwaja Muhammad Khan v. Nawab Husaini Begam and Frederick Emmanuel Abeyesundera v. Ceylon Exports Ltd. AIR 1936 PC 259 vehemently contended that even though a document may not create an express trust at least a constructive trust can be held to have been created by the documents if the ultimate benefit of the transaction embodied in the document is to go in favour of a given party. In our view these decisions cannot be of any help to Respondents 1 and 2. In Nawab Khwaja Muhammad Khan v. Nawab Husaini Begam case by document dated 25-10-1877 the appellant before the Privy Council had agreed with respondent's father to the effect that in consideration of marriage with his son he would pay to the respondent Rs 500 a month in perpetuity for betel leaf expenses. As the document was executed for the benefit of respondent though she was not party to the document executed with her father, it was held that in equity, a right arose in favour of respondent to enforce the document as she was the beneficiary under the document. Similarly, in Frederick Emmanuel Abeyesundera v. Ceylon Exports Ltd. case AIR 1936 PC 259, a father who has transferred certain property to his son by deed of gift had consequently tried to transfer the property to another person. It was held that the father having already transferred the property to his son earlier, he was a constructive trustee for his son and therefore the beneficiary-owner of the property being the son, son's interest could not be affected by the said transfer. In both these cases there was clear evidence on record to show that the beneficiary had legal and equitable interest in the property sought to be consequently conveyed, hence the principles of constructive trust or equitable benefit were pressed in service by the Privy Council on the facts of these cases. In the present case the aforesaid two documents even by remotest chance do not confer any equitable or legal interest on the plaintiffs so far as suit lands are concerned. If at all any beneficial interest could arise in favour of the plaintiffs, that would get attached to 50% of sale consideration which defendant 3 might receive either directly on sale of suit lands or on account of the sale by his power of attorney holders defendants 7 and 8 in favour of other parties. Consequently, it is impossible to agree with the view of the learned Single Judge of the High Court that the memorandum of compromise and the power of attorney read together established that the third defendant was holding one-half of the suit lands as and from the date of the memorandum of compromise only as a trustee for the benefit of the fourth defendant and his wife, the first plaintiff. It is equally not possible to agree with the view that since the right conferred on these beneficiaries related to an undivided half share in the suit lands, the defendants 7 and 8 were required to sell the undivided half share and invest in some other property to be settled for the benefit of these beneficiaries or that on the terms of the agreement, requirements of Sections 5 and 6 were complied with. Consequently, the judgment and decree as passed by the learned Single Judge are required to be quashed and set aside. The suit of the plaintiffs as filed was required to be dismissed and was rightly dismissed by the trial court as well as the first appellate court.

7. However, one aspect of the matter requires to be noted at this stage. Even the trial court and the first appellate court have taken the view on evidence that there was a talk of securing the interest of plaintiff 1 prior to her marriage with defendant 4 who was of weak intellect and that seems to be the reason why memorandum of settlement Ext. A-1 or even the power of attorney Ext. A-2 in favour of defendants 7 and 8 saw the light of the day. But for such promise held out by defendant 3 for the benefit of plaintiff 1 the marriage itself would not have taken place. Defendant 6 and plaintiff 1 both changed their position to their detriment only because of that promise held out by defendant 3 for the benefit of plaintiff 1. Defendant 3 seems to have become smart with the plaintiffs and having taken advantage of helpless condition of plaintiff 1 and her minor daughter and also of his own son of weak intellect defendant 4, entered into the sale deeds in favour of defendants 1 and 2 to which both he and defendant 4 became parties as executants. The learned counsel for plaintiff-respondents 1 and 2 therefore vehemently contended that in case we were not inclined to hold in favour of the plaintiffs in the light of the documents Exts. A-1 and A-2, then in the interest of justice some reasonable amount may be directed to be paid by defendants 1 and 2 to the plaintiffs who are stranded in life. Defendants 1 and 2 have stepped into the shoes of defendants 3 and 4 and would be bound in equity to make good the promise held out by defendant 1 on his behalf and on behalf of his son, defendant 4 who was of weak intellect, to secure the interest of plaintiff 1, on the basis of which marriage of plaintiff 1 with defendant 4 took place. We find force in this contention. In our view this is a fit case for invoking our power under Article 142 of the Constitution of India for giving equitable relief to the respondent-plaintiffs 1 and 2 not on the ground on which they claimed the relief in the suit but on the ground of promissory estoppel, equity and fair play. As noted earlier, defendant 6's own admission at the stage of trial clearly shows that there was some arrangement between defendants 3 and 6 for the benefit of plaintiff 1 pursuant to which the marriage of defendant 4 took place with plaintiff 1. It has to be noted that the suit properties were sold to defendants 1 and 2 years back for Rs 11,000 on 24-10-1959. With the passage of years the suit properties naturally had appreciated in value. They were claiming half share in the consideration which was to be obtained out of the sale of this property. Thus plaintiff's equitable share in the said consideration would work out to approximately Rs 6000 years back in 1959. Keeping in view the escalation in land prices it is easy to visualise that the value would have arisen by at least 10 times if not more as the properties were situated in Kumbakonam town of Tamil Nadu. Considering all these aspects, therefore, in our view the interest of justice would be served if we direct the present appellants while allowing their appeal to pay Rs 60,000 in full and final satisfaction of plaintiff-respondents 1 and 2's claim in the present litigation. The appellants shall deposit Rs 60,000 in the trial court for being given to plaintiffs 1 and 2 on due identification by the court. The said amount shall be deposited within six weeks from the receipt of the copy of this order by the appellants. Office is directed to send the copy of this order to the appellants for information and due compliance. On such receipt it shall be open to Respondents 1 and 2 to withdraw the said amount in full and final satisfaction of their claim regarding the suit properties. There shall be a decree of Rs 60,000 in favour of Respondents 1 and 2. The appeal of the appellants will stand allowed and will be substituted by a decree for Rs 60,000 in favour of plaintiffs 1 and 2, that is, Respondents 1 and 2 herein and against the appellants which shall be marked satisfied on the deposit of the aforesaid amount by the appellants and on its withdrawal by the plaintiff-respondents 1 and 2, on due identification before the trial court. The appeal is disposed of accordingly. In the facts and circumstances of the case there will be no order as to costs.