TMI Blog1951 (9) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Will. Probate was granted of the Will on 15-8-1946 to both these defendants. On 21-12-1948 the defendant Vyas instituted a suit being. Suit No. 4156 of 1948 against defendant 2 Pran Ballav Saha alleging maladministration and misappropriation of the trust estate. The suit came up for hearing on 13-7-1949 before my learned brother S. E. Das Gupta J. and the matter was ultimately settled on certain terms of settlement and a consent decree was made on or about 7-9-1949. That consent decree is now 6hallenged before me in this suit. 3. On behalf of the defendants the following Issues were raised and they were accepted on behalf of the plaintiffs. The Issues are : (1) Is the consent decree dated 7-9-1949 invalid on the ground of non-representation of the Deity? (2) Is the consent decree invalid on the ground that it is at variance with the terms of the Will ? (3) Is the consent decree invalid on the ground that there was no free and voluntary consent by Batan Bala? (4) To what scheme of administration, if any, are the plaintiffs entitled? The third Issue is the only issue of fact and the 1st and second Issues are Issues of law. The parties have naturally therefore le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile the sheva of the plaintiff deity Mahadeb Jew was directed to be carried on by the trustees mentioned under ,the Will, the terms of settlement provide that such sheva will be carried on by only one person Ratanbala who again lost her character as a trustee of the Will by relinquishment under the consent decree. The question therefore is can the provision regarding the sheva and the terms of settlement bind the plaintiff deity who was not a party to those terms of settlement. It certainly concerns the interest of the deity in the sense that it is the sheva of the deity for which provision has been made. It appears to me that the deity has a right to be heard on this question of sheva which directly affects it, if such provision is going to be changed as has been done by the terms of settlement and the consent decree. The plaintiff deity has a right under the Will of Eenubala and in so far as the terms of settlement and consent decree alter the character of that right then it can only be done in my judgment after giving the deity an opportunity to be heard on the point. 16. The Judicial Committee of the Privy Council in Pramatha Nath v. Pradyumna Kumar, 52 Ind. App. 245 (P. C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the deity's interests have not suffered and that in fact there is no evidence that the deity's interest is not looked after. In support of that argument he has referred me to the evidence of the priest Jhanendra Nath Chakravarti given in this case where he says that the sheva of the deity is being carried on and a sum of ₹ 60 mentioned in the Will is being spent. I do not consider that such argument meets the essential point in this case. The essential point is not whether in fact' the deity's interest has up till now been affected in the matter of the sheva in the sense that no proper sheva is performed. In my opinion the essential point is that the legal right, whatever may be the present fact, of the plaintiff deity as embodied in clause 6 of the Will has been altered by the terms of settlement and the consent decree without giving an opportunity to the deity to be heard on the point. That goes in my view against all principles of natural, justice and the well known principle audi alter am partem. 19. A Hindu deity like the present plaintiffj deity is a juristic person and has the right to sue or be sued and has the right to be heard on a matter conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rooms at 3, Gouri Sankar Lane, Calcutta, and to be maintained out of the income of such premises during the terms of their natural lives provided that if any of them chooses to reside elsewhere then each of them will be entitled to have a sum of Es. 50 for their respective residence and maintenance during their natural lives. The next grant in the Will is for spending a sum of exceeding Es. 50 for giving alms to the poor out of the income of the said premises. Thereafter the Will proceeds to direct the executors to spend a sum of ₹ 3,000 for funeral expenses and Adya Sradh and for offering Pinda at Gaya for the testatrix. The next direction is upon the executors to pay out of the estate expenses for the medical treatment for Panna-moyee Dassi and also to spend a sum upto Es. 2000 for her funeral expenses, Adya Sradh and Pinda. Then the Will makes a provision for the deity in Clause 6 which I have already noted above. Thereafter the Will proceeds to provide that after meeting all debts and expenses of the estate the estate will be held in trust first for payment of the outgoing of the estate and for expenses for repairs thereof and secondly the rest of income to be spent for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ground alone if plaintiff Ratan Bala had been an illiterate and Pardanashin lady and on the records which do not show that this particular deprivation of Es. 15 per month was clearly explained to her, the terms of settlement could have been impeached. But of course that question does not arise here any further not only because Ratan Bala gave her free and voluntary consent but also because I cannot hold on the facts that Ratan Bala is a Pardanashin lady and because I feel that she had competent legal advice at all. 28. But the more serious question here is whether the two trustees namely defendants Vyas and Saha can under law agree to act according to the directions of another trustee who is described as the Managing Trustee under Clause 1 of the terms of settlement. No trustee can delegate his powers and duties to another trustee. An agreement to do so will be illegal and void. To require therefore as required by Clause 1 of the terms of settlement that two trustees shall act according to the directions of the Managing Trustee is to say that the other two trustees will be merely agents of the Managing Trustee to carry out the orders and directions of the Managing Trustee. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is the instrument of Trust and which contemplates all the trustees acting together jointly. In any event the terms of settlement cannot be binding on the plaintiff deity because such deity was not a party to these terms of settlement and the will of the deity might as well be that it will not permit the Managing Trustee to override the other two trustees. 31. I, therefore, hold that Clause 1 of these Terms of Settlement to be illegal and that even if such delegation as is contemplated in Clause l of the terms of settlement was held to be valid as between the consenting parties namely defendants Vyas and Saha and plaintiff Ratan Bala that cannot be validly binding on the plaintiff deity. 32. It is unnecessary for me to refer to the numerous case-law on the subject of co-trustees and delegation and will content myself by referring to one authoritative and succinct pronouncement on the subject. The learned Editor of Lewin on Trusts 14th Edition at p. 196 observes: In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees they all form as it were but one collective trustee and, therefore, must execute the duties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature. I am not concerned here with public charities or trusts for public purposes of a charitable or religious nature. The suit before me is not a suit under Section 92, Civil P. C. at all. This is a suit for administration of trust, for a scheme and other reliefs. That decision of the Privy-Council is in my judgment no authority for the proposition that this Court in a suit for administration cannot frame a scheme in respect of a private trust. This contention of Mr. Mookherjee cannot be sustained and in my judgment is unsound. In that very decision of Pramatha Nath v. Pradyumna Kumar, 52 Ind. App. 245 to which reference has already been made, their Lordships of the Judicial Committee of the Privy Council directed at p. 261: A scheme should be framed for the regulation of the worship of the idols. There also was a case of private trust. 36. I therefore hold that it is permissible for (this Court in a suit for administration of the trust relating to a private trust to frame a scheme for the proper management of the trust. To deny such power to the Court will be to hold that a trust will be allowed to fail because of a proper scheme for administering and upholding it. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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