Samitendra Narayan Dutta & Ors. v. Purnendra Narayan Dutta & Ors.

Ganguly, J.:— This appeal is directed against a judgment and decree dated 21st July, 1999 passed by a learned Judge of this Court whereby in a proceeding by way of Originating Summons a Trust Deed was sought to be interpreted by the learned Judge and certain questions have been answered. The material facts of the case are as follows:—

One Pravabati Dasi, a Hindu Lady during her lifetime executed a Deed of Trust dated 11th March, 1952 whereby certain provisions have been made for the benefit of Shri Shri Iswar Gopal Jew Deity located at Mazilpur Dutt House, P.S Joynagar, District 24-Parganas (South). The said deity being the ancestral property of the lady, the said Settlor Smt. Pravabati Dasi granted, transferred and assigned premises No. 3B, Sarkar Lane, Calcutta-700007 and inheritance thereof in fee simple in possession in the manner provided in the Trust Deed. The plaintiff-respondent was appointed a Trustee under the said Deed of Trust.

2. Admittedly, the plaintiff-respondent, thereafter, on 12th October, 1955 had written a letter to two other Trustees, namely, Smt. Bhagabati Dutta since deceased and Smt. Sushma Rani Dutta expressing his desire to retire from the Trusteeship of the said Trust. The case of the plaintiff-respondent is that the said letter of resignation was not served on the Settlor. However, it is also stated by the plaintiff-respondent in the petition for Originating Summons that on 1st October, 1956, he served a copy of the said letter dated 12th October, 1955 on the Settlor who received the same along with the letter dated 1st October, 1956. The case of the plaintiff-respondent is that the Settlor came to know of his desire of retiring from the Trusteeship but did not accept the resignation and orally asked him to continue. The further case of the plaintiff-respondent is that in August 1996, he came to know for the first time in a legal proceedings initiated by him in City Civil Court, Calcutta, that his father Sailendra Narayan Dutta, since deceased, had executed a Deed of Trust dated 4th June, 1958 whereby the said Sailendra Narayan Dutta, father of the plaintiff-respondent appointed some Trustees beyond the line of appointment as mentioned in the Deed of Trust. In these facts, the following questions have been raised by the plaintiff-respondent before this Hon'ble Court in the proceeding for Originating Summons for an interpretation of Trust Deed. Those questions are set out hereinbelow:—

(1) Whether the plaintiff has ceased to be a Trustee in view of the letter dated 12th October, 1955 addressed to the Trustees as stated in Paragraph 7?

(2) Whether my father Sailendra Narayan Dutta, since deceased had the right to appoint himself as a Trustee or by subsequent delegation to appoint somebody else not in conformity and/or in utter violation of the Deed of Trust dated 11th March, 1952?

(3) Whether the said Saileadra Narayan Dutta, since deceased was competent during his lifetime to appoint a new Trustee denying the provision of the Trust Deed and denying the provision of Hindu Succession Act, 1956?

3. In the said proceedings for Originating Summons, numbered as O.S Suit No. 269 of 1997, an affidavit was filed by the appellants raising various contentions. It was stated in the affidavit it was urged that the plaintiff-respondent was trying to harass the family members by initiating various civil and criminal proceedings against the appellants and a suit had been filed by the plaintiff-respondent being Title Suit No. 1856 of 1996 in the City Civil Court at Calcutta claiming a declaration that he is a Trustee of the said Trust Property. It is also stated in the said affidavit that the plaintiff-respondent has retired and relinquished the office of the Trustees in the year 1955 and at that time he was a bachelor and as such after his retirement, the father of the plaintiff Sri Sailendra Narayan Dutta, since deceased, ipso facto became the Trustee and duly appointed Smt. Bhagabati Dutta, since deceased, as a Trustee in place and stead of both Sailendra Narayan Dutta and Purnendra Narayan Dutta and granted, conveyed, transferred and assigned all right, title and interest in favour of the said Smt. Bhagabati Dutta, since deceased in respect of the said Trust Property in 3B, Sarkar Lane, Calcutta and the plaintiff-respondent has no locus standi to file the suit or Originating Summons proceeding and it is also stated that the said proceedings by way of Originating Summons have been filed upon suppression of material facts.

4. These are basically the rival contentions of the contesting parties.

5. The point for decision before this Court is whether the questions which have been raised in the instant case in a proceedings for Originating Summons come within the scope of the procedure relating to Originating Summons under Chapter XIII of the Original Side Rules of Calcutta High Court.

6. The procedure relating to Originating Summons is much the same as the procedure in England under Rules of Supreme Court with very minor variations. In any proceedings for Originating Summons, the Court will consider whether the questions asked or reliefs sought are such that the Court can under the Rules deal with in an Originating Summons proceedings.

7. As early as in 1927, a learned Judge of this Court while dealing with the proceedings in Originating Summons held in the case of (1) Mitchell v. McNeill reported in 31 CWN 630, as follows:—

8. In my view, the procedure by Originating Summons is not applicable to a contentious matter.”

9. His Lordship was of the view that in a case relating to a contentious matter, the parties should have been relegated to a suit.

10. To the same effect is the judgment of the Supreme Court in the case of (2) Official Trustee, West Bengal v. Sachindra Nath Chatterjee reported in AIR 1969 SC 823. In Paragraph 21 of the said judgment, Justice Hegde (as His Lordship then was) has been pleased to hold that the jurisdiction of a Judge under Chapter XIII of Calcutta High Court Rules in a proceedings for Originating Summons is summary in nature. His Lordship was pleased to hold that even if it is assumed that a Judge sitting in the Original Side of the High Court of Judicature at Calcutta has all the powers of a Chancery Judge in England even then proceedings under Originating Summons have conferred upon the Judge only a summary jurisdiction. The attention of this Court has also been invited to another Division Bench Judgment of this Court in the case of (3) Gokul Chand De v. Gopinath Dey reported in AIR 1952 Cal 705. In the said judgment, the learned Judges relied on a judgment of Justice Warrington in (4) Lewis v. Green reported in (1905) 2 Ch. Division 340. The observations of Justice Warrington have been quoted with approval in Paragraph 44 of Gokul Chand De (supra). The said quotation is extracted below:—

“It (the procedure under Order 54-A) is only intended to enable the Court to decide questions of construction where the decision of these questions, whichever way it may go, will settle the litigation between the parties.”

11. Here the controversy between the parties are pending in a regular suit and the same cannot be resolved by a mere construction of the deed.

12. Later on two other judgments of Calcutta High Court have taken the same view. In the case of (5) State Bank of India v. Mohuragang & Gulam Tea Estate reported in 1988 (2) Cal. High Court Notes 78, Justice Banerjee, (as His Lordship then was) after discussing elaborately the law on the subject and speaking for the Bench, observed:—

“Originating Summons is available to proceedings which are not of an involved nature and on which there would hardly be any scope for any oral evidence.”

(para 36, page 93 of the report).

13. In a subsequent Division Bench Judgment of this Court in the case of (6) Shree Shree Iswar Shiv Thakur v. Amar Nath Daw reported in 1998 (1) Calcutta Law Times page 58, a Division Bench, of which Justice Banerjee was a member, was pleased to observe in Paragraph 10 of the judgment that intricate and mixed questions of fact and law could only be determined in a regular suit and since a regular suit was pending, the Court did not approve of any proceedings by way of Originating Summons to decide the issue.

14. In the instant case also, looking at the questions framed in the Originating Summons proceedings it appears that those questions cannot be decided without taking oral evidence and those questions are mixed questions of fact and law and are not fit to be decided in the summary jurisdiction in Originating Summons.

15. Apart from that this Court finds that while initiating a proceedings under Originating Summons, the plaintiff-respondent has made a gross suppression of the fact that a suit was filed by him before the City Civil Court at Calcutta in which a declaration was prayed for about his status as a Trustee in respect of the same Trust Deed. Prayer (a) made in the suit is set out below:—

(a) Decree for declaration that the plaintiff is the Co-sharer/Trustee and to use, occupy and possess the Chamber/Room on the ground floor of the premises No. 3B, Sarkar Lane, Calcutta-7 described in the Schedule below.

16. In Paragraph 21 of the plaint filed in the said suit by the plaintiff-respondent, there is a clear averment to the effect that a cloud has been cast upon the plaintiff's right, title and interest over his occupation of the Chamber/Room in the ground floor of the said premises which is a Trust Property and it was also made clear that the said suit was instituted for a declaration that the plaintiff, the plaintiff/respondent before us, is a co-owner and Trustee of the suit premises. This Court is given to understand that the said suit is pending and various orders have been passed in the said suit. The fact that the said suit had been filed by the plaintiff with the aforesaid prayer has not been properly stated in the petition which has been filed for initiating proceedings in Originating Summons. Learned Counsel appearing for the plaintiff-respondent submitted that there was no suppression and those facts have been stated. He has drawn the attention of this Court to Paragraph 9 of the said petition which has been filed for initiating Originating Summons proceedings.

17. This Court has seen Paragraph 9 and carefully considered the said submission. But, unfortunately, this Court on a careful consideration of the said submission is of the view that there has not been any candid or clear disclosure of the fact that the suit had been filed by the plaintiff-respondent praying for declaration of his status as a Trustee in the said Trust Property. The scanty reference to the proceedings was designedly made to conceal the real nature and scope of the proceedings initiated in City Civil Court. The real purport of the proceedings and its impact on the proceedings sought to be initiated by way of Originating Summons was concealed from the Court.

18. This is not the disclosure which is required of a litigant who approaches the Court for some equitable remedy. This principle is well-settled. If a litigant approaches the Court for equitable remedy the principle of uberrima fides will govern such proceedings and it is the bounden duty of the litigant to disclose all facts with sufficient candour and clarity so that the Court is not deceived in passing an order. In the instant case, the said candour has not been practised by the plaintiff-respondent even though he is an Advocate of this Court. This is all the more unfortunate.

19. Reference in this connection has been made to an old English decision in the case of The King v. The General Commissioners for the purposes of the Income Tax Acts for the District of Kensington ex parte princess Edmond De Polingac reported in 1917 King's Bench Division 486.

20. Explaining the principles of uberrima fides in that decision, Lord Cozens-Hardy, M.R stated as follows:—

“The application for a special injunction is very much governed by the same principles which govern insurances matters which are said to require the utmost degree of good faith, ‘uberrima fides’. In cases of insurance a party is required not only to state all matters within his knowledge, which he believes to be material to the question of the insurance, but all which in point of fact are so. If he conceals anything that he knows to be material it is a fraud; but, besides that, if he conceals anything that may influence the rate of premium which the under writer may require, although he does not know that it would have that effect, such concealment entirely vitiates the policy. So here, if the party applying for a special injunction, abstains from stating facts which the Court thinks are most material to enable it to form its judgment, he disentitles himself to that relief which he asks the Court to grant. I think, therefore, that the injunction must fall to the ground.”

21. The same learned Judge at page 504 has also placed it as “the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is not for him to say that he was not aware of the importance of any facts which he has omitted to bring forward”.

22. Lord Justice Warrington has also expressed the same view at page 509 of the report by saying that “a party is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledges, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him. That is perfectly plain and requires no authority to justify it”.

23. Same view has been expressed by Lord Justice Scrutton in that decision.

24. Going by these time-honoured principles, this Court finds that there has not been full disclosure of relevant facts, on the other hands the relevant facts have been suppressed from the proceeding initiated by way of Originating Summons by the plaintiff-respondent.

25. Therefore, considering all these facts this Court has no hesitation in reversing the judgment and decree dated 21st July, 1999 in view of the fact that such matter cannot be decided within the scope of a proceedings by way of Originating Summons and especially when a suit has been filed by the plaintiff-respondent in the City Civil Court for declaring his status as a Trustee in respect of the same Trust Deed and that suit is contested by the parties and from time to time various orders have been passed.

26. The appeal is allowed. The judgment and decree passed by the trial Court is set aside. There will, however, be no order as to costs. Interim order, if any, granted by the Appeal Court stands vacated. This Court makes it clear that nothing said in this judgment will affect the rights of the parties in the pending suit before the City Civil Court.

27. Prayer for stay of operation of this judgment and order, in the facts and circumstances of the case, is rejected. Xerox certified copy of this judgment and order be made available to the parties on a priority basis.

28. Chattopadhyay, J.:— I agree.

29. S.K.G