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NEELAM PARIHAR v. ANNIRUDH SINGH KATOCH
Judgment Summary: Civil Revision No.16 of 2023 (High Court of Uttarakhand at Nainital)
Factual and Procedural Background
This revision arises from an order dated 28.11.2022 passed by the 2nd Additional District Judge, Nainital in Misc. Civil Suit No.47/2007 ("Anirudh Singh Katoch vs. Ashok Singh Bisht and others"). The revisionists are Neelam Parihar and another (defendant nos.2 and 3) who challenge the dismissal of their application under Section 151 of the Code of Civil Procedure (C.P.C.) seeking a declaration that the "Thakur Dan Singh Trust" has been extinguished.
The original suit was filed by respondent nos.1 and 2 (plaintiffs) seeking, among other reliefs, the discharge of opposite party nos.1 and 2 as trustees of the Thakur Dan Singh Bisht Trust and appointment of new trustees; restraint on opposite party no.3 from acting as Chairman; impounding of beneficial interest of opposite party nos.1 and 2; costs; and other reliefs.
The Trust was created by Late Thakur Dan Singh Bisht (registered deed dated 30.03.1963) for the maintenance/benefit of his three wives. Paragraph XII of the Trust deed provided that upon the death of the last surviving wife, the trust property shall be available to and vest in the surviving daughters of the author of the Trust and/or the children of a pre-deceased daughter in accordance with Hindu succession law. Two of the wives had died before the suit was filed, and the last surviving wife died on 08.11.2018 during the pendency of the suit.
Following the death of the last surviving wife, defendant nos.2 and 3 filed an application under Section 151 C.P.C. (application paper no.70-C) arguing that the purpose of the Trust had been fulfilled and that the Trust had therefore extinguished; the Trial Court dismissed that application. The defendants sought revision of that dismissal before the High Court.
Legal Issues Presented
- Whether, upon the death of the last surviving wife of the author of the Trust, the Thakur Dan Singh Trust is extinguished under Section 77 of the Indian Trust Act, 1882, in view of paragraph XII of the Trust deed.
- Whether an application under Section 151 C.P.C. to bring to the court's notice that the pending litigation has become infructuous (by reason of the Trust being extinguished) was maintainable and should have been allowed.
- Whether the Trial Court erred in dismissing the Section 151 C.P.C. application on the basis that Sections 72–74 of the Indian Trust Act, 1882 confer power on the court to appoint new trustees, thereby making the application not maintainable.
Arguments of the Parties
Revisionists (Defendant nos.2 and 3)
- Contended that the Trust was created for the benefit/maintenance of the three wives and that, upon the death of the last surviving wife (08.11.2018), the purpose of the Trust stood completely fulfilled.
- Relying on Section 77 of the Indian Trust Act, 1882, submitted that the Trust is extinguished when its purpose is completely fulfilled and therefore the suit is not sustainable.
- Prayed under Section 151 C.P.C. to declare the Trust extinguished and to have the pending litigation treated as infructuous.
Respondent no.1 / Plaintiff no.1
- Argued that a holistic interpretation of paragraph XII of the Trust deed shows that after the death of all the wives, the Trust property shall vest in the surviving daughters and/or the children of a daughter who predeceases the wives; therefore, merely the death of the wives does not mean the purpose of the Trust is fulfilled.
- Did not specifically deny in pleadings that the wives had died; the last surviving wife's death on 08.11.2018 was admitted at the Bar.
Respondent no.2 / Plaintiff no.2
- Filed a short counter affidavit stating the Trust was executed on 30.03.1963 for the sole purpose of maintenance of the three wives, and that the Trust deed stipulates that after the death of all the wives the purpose would be fulfilled and the property would vest in daughters and grandchildren as per paragraph XII.
Respondent no.3 / Defendant no.1
- Filed a short affidavit asserting that the purpose of the Trust was fulfilled on the death of the last surviving wife in 2018, and therefore the Trust has extinguished.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shipping Corporation of India Ltd. v. Machado Brothers and others, 2004 (11) SCC 168 | That where, by subsequent events, the original proceeding has become infructuous, it is the duty of the court to take appropriate action in the interest of justice; parties can make an application under Section 151 C.P.C. to bring such facts to the court's notice; courts should not continue infructuous litigation merely to keep interlocutory orders alive. | The High Court relied on this authority to accept the proposition that an application under Section 151 C.P.C. is available to bring to the court's attention that a pending suit has become infructuous and to justify taking action (i.e., allowing the application) in the interest of justice. |
Court's Reasoning and Analysis
The High Court examined the impugned order of the Trial Court (28.11.2022) which had dismissed the Section 151 C.P.C. application on the ground that Sections 72, 73 and 74 of the Indian Trust Act, 1882 rendered the application not maintainable because the court had the power to appoint new trustees.
The High Court found that the Trial Court had not properly considered the specific terms of the Trust deed, namely paragraph XII, which the High Court read as providing that on the death of the last surviving wife the trust property shall vest in the daughters of the author and/or grandchildren (in accordance with Hindu succession law), and that thereafter the statutory provisions of the Indian Trust Act would not govern the disposition of the property in the same manner.
The High Court observed that the fact of death of the last surviving wife (08.11.2018) was effectively admitted (the reply/objection before the Trial Court did not specifically deny it and it was admitted at the Bar). Given that factual position, the High Court considered Section 77 of the Indian Trust Act, 1882, which lists circumstances in which a trust is extinguished, including when its purpose is completely fulfilled.
The Court also relied on the Supreme Court decision in Shipping Corporation v. Machado Brothers to explain that when a subsequent event makes the proceeding infructuous, parties may invoke Section 151 C.P.C. to bring that fact to the court's attention and the court must act in the interest of justice to dispose of infructuous litigation. The High Court concluded that the Trial Court erred by not enquiring into the effect of paragraph XII and the admitted facts and by mechanically relying on its powers under Sections 72–74 without confronting the terms of the Trust deed and Section 77.
Based on that analysis, the High Court held that the Trial Court failed to properly exercise its jurisdiction and that its order dismissing the Section 151 application was legally unsustainable.
Holding and Implications
Holding: The civil revision is allowed; the impugned order dated 28.11.2022 passed by the Trial Court on application paper no.70-C is set aside, and application paper no.70-C (the application under Section 151 C.P.C. filed by the revisionists) is allowed.
Implications:
- Direct effect on the parties: The High Court has set aside the Trial Court's dismissal of the Section 151 application and has allowed the application, effectively accepting that the application to treat the suit as infructuous required favourable consideration in light of paragraph XII of the Trust deed, the admitted death of the last surviving wife, and Section 77 of the Indian Trust Act, 1882.
- No broader novel legal principle or new precedent was announced by the High Court beyond application of Section 77 of the Indian Trust Act and the established principle (from the cited Supreme Court authority) that Section 151 C.P.C. can be used to draw the court's attention to events making proceedings infructuous; the decision is directed to the facts and legal provisions applied in this matter.
Judge: Vivek Bharti Sharma, J. — Dated: 04.10.2023.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No.16 of 2023
Neelam Parihar and another ….Revisionists
Versus
Annirudh Singh Katoch and others .…Respondents
Present:
Mr. P.C. Maulekhi, counsel for the revisionist. Mr. Yash Anand, Advocate through V.C. along with Mr. Narendra Bali, counsel for respondent no. 1
Mr. Piyush Garg and Ms. Sunayna Kohli Kothari, counsel for respondent no.2. Mr. Tarun Pande, counsel for respondent no.3.
Dated: 04.10.2023
Hon'ble Vivek Bharti Sharma, J. (Oral)
This civil revision has been filed by the revisionists/defendant no.2 and 3 against the order dated 28.11.2022 passed by 2ndAdditional District Judge, Nainital in "Misc. Civil Suit No.47/2007 "Anirudh Singh Katoch vs. Ashok Singh Bisht and others", whereby the application filed by the revisionists/defendant no.2 and 3 under Section 151 of C.P.C. to declare the Thakur Dan Singh Trust extinguished, has been dismissed.
2. Learned counsel for the revisionists/defendant nos.2 and 3 would submit that the respondent nos.1 and 2/plaintiffs filed a suit against the revisionists/defendant nos.2 and 3 and respondent nos.3/defendant no.1 with the following prayer:-
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" A) Discharge opposite party no.1 and no. 2 as Trustees of Thakur Dan Singh Bist Trust and new Trustees be appointed in their place.
B) Restrain opposite party no.3 from acting as the Chairman of the aforesaid Trust in the interest of justice otherwise the aforesaid Trust through its Chairman would suffer irreparable loss and injury.
C) Impound the beneficial interest of opposite party no.1 and no.2 as against themselves and all.
D) Allow the costs of the suit be awarded to the petitioners against the opposite parties.
E) Award any other relief for which the petitioners are found entitled be awarded to them against the opposite parties."
3. He would further submit that Thakur Dan Singh Trust (hereinafter to be referred as the Trust) was created by Thakur Dan Singh Bisht for benefit of his three wives; that in para XII of the Trust Deed it was specifically stated that on the death of the last surviving wife, the Trust property shall be available to and vest in the surviving daughters of the Author of the Trust and/or children of predeceased daughter, if any, in accordance with Hindu Law of Succession and Inheritance Act in force; that, before filing of the suit by respondent no.1 and 2/plaintiffs, the two wives, namely, Smt. Ganga Devi Bisht and Smt. Jagatraj Kumari Bisht of Thakur Dan Singh Bisht i.e. the Author of the Trust deed had already
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died and during the pendency of the suit the last surviving wife Smt. Leelawati also died on 08.11.2018; that, on the death of last surviving wife of the Author of the Trust deed, the revisionists/defendant nos.2 and 3 filed an application under Section 151 C.P.C. with a prayer that as all the wives of Thakur Dan Singh Bisht i.e. the beneficiary of the Trust-deed have died and purpose of the Trust is fulfilled, therefore, as per para XII of the Trust deed, the purpose of the Trust is fulfilled, therefore, the suit is not sustainable and is liable to be dismissed; that the learned Trial Court vide its order dated 28.11.2022 dismissed this application.
4. Learned counsel for the revisionists/defendant nos.2 and 3 would further submit that as per Section 77 of the Indian Trust Act, 1882, the Trust has extinguished as its purpose is completely fulfilled.
5. Learned counsel for the respondent no.1/plaintiff would submit that in holistic interpretation of para XII of the Trust Deed it is amply clear that after the death of all the wives of Author of the Trust, the property of the Trust shall vest in the surviving daughters and/or the children of daughter who predeceases the wives of Thakur Dan Singh Bisht, the Author of the Trust deed. Therefore, merely by death of
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all the three wives of the Author of the Trust Deed the purpose of the trust is not fulfilled.
6. Mr. Piyush Garg, learned counsel for the respondent no.2/plaintiff no.2 would submit that he has filed a short counter affidavit wherein at para 3 and 4 he has specifically stated that on 30.03.1963 Late Thakur Dan Singh Bisht had executed a registered Trust deed for sole purpose of maintenance of his three wives during their lifetime and it was also stipulated in the Trust deed that after the death of all the wives of Thakur Dan Singh Bisht, the purpose of the Trust would be fulfilled and the property would vest in the daughters and grandchildren as stated in para XII of the Trust-deed.
7. Mr. Tarun Pande, learned counsel for respondent no.3/defendant no.1 would submit that he has also filed a short affidavit to the effect that the purpose of the Trust Deed has fulfilled on the death of last surviving wife of the Author of the Trust deed Thakur Daan Singh Bisht in the year 2018, therefore, the Trust has extinguished.
8. Learned counsel for the revisionists/defendant nos.2 and 3, respondent no.2/plaintiff no.2 and respondent no.3/defendant no.1 would submit in unison
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that the purpose of the Trust is fulfilled by operation of Section 77 of the Indian Trust Act, 1882.
9. Perused the impugned order in the light of the submissions made by learned counsel for the parties.
10. The learned Trial Court in its order dated 28.11.2022 had dismissed this application moved by the revisionists/defendant nos.2 and 3 u/s 151 C.P.C. with the observation that the application is not maintainable in the light of Section 72, 73 and 74 of the Indian Trust Act, 1882 as the Court has got power to appoint the new Trustees. In the considered opinion of this Court, the learned Trial Court had not gone through the terms of the Trust deed, wherein it is specifically stated that the property of the Trustee shall vest in the daughters of the Author of the Trust Deed Thakur Daan Singh Bist and his grand children, if any of the daughter predeceases the death of last surviving wife of Thakur Dan Singh Bist. Para XII of the Trust deed specifically states that the property shall vest in daughters and grandchildren, i.e. to say, that after the death of last surviving wife of Thakur Dan Singh Bist the provisions of Indian Trust Act, 1882 shall not be applicable and this property shall devolve upon the daughters and
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grandchildren as stated in para XII of the Trust deed as per the Hindu Succession Act.
11. In "Shipping Corporation of Indian Ltd. vs. Machado Brothers and others 2004 (11) SCC 168" the Hon'ble Supreme Court has observed as under:
"25. Thus it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice, which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.
28. Therefore, in our opinion, the courts below erred in continuing an infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse."
12. A perusal of the reply/objection filed by the respondent no.1/plaintiff before the court below (Annexure 8 to the revision) would reveal that the averment that the wives of the Author of the Trust deed Thakur Daan Singh Bist expired by 08.11.2018 is not specifically denied. Learned counsel for the respondent no.1/plaintiff no.1, however, would admit at Bar that the last surviving wife of Thakur Daan Singh Bisht died on
08.11.2018.
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13. It would be opportune to visit Section 77 of the Indian Trust Act, 1882. It reads as under:-
"77. Trust how extinguished.—A trust is extinguished—
(a) when its purpose is completely fulfilled; or
(b) when its purpose becomes unlawful; or
(c) when the fulfilment of its purpose becomes impossible by destruction of the trust property or otherwise; or
(d) when the trust, being revocable, is expressly revoked."
14. In view of the above discussion, this Court is of the view that the impugned order passed by the Trial Court is bad in the eyes of law and is unsustainable. The learned Trial Court has failed to exercise the jurisdiction vested in it. Present civil revision is allowed. The order dated 28.11.2022 passed by the Trial Court on the application paper no.70-C is hereby set aside. Application paper no.70-C moved by the revisionists under Section 151 of C.P.C. stands allowed.
(Vivek Bharti Sharma, J.)
04.10.2023
Rajni
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