TMI Blog1968 (12) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... e should be held to the use and for the benefit of the said Sm. Santimoyee Devee and the said sons. Santimoyee Devee to be paid from the income and the profits of the said estate ₹ 50 monthly and the balance of the income and profits of the Trust Estate to be held for the use and benefit of each of the sons in equal shares and after the death 'of the said Santimoyee Devee to make over the whole of the Trust Estate to each of the sons in equal shares. He reserved to himself the Power to vary the terms and conditions of the Trust so far as they relate to the quantum of interest given to each of the beneficiaries after the death of the settlor by his instrument by will alone and in no other way or act . 3. The settlor administered the trust property for sometime and thereafter thought of effecting by deed inter vivos certain changes in the trust. To enable him to do so he took out an originating summons on the original side of the Calcutta High Court under Chapter XIII of the Original Side Rules of that Court seeking primarily two reliefs viz., (1) to have the Official Trustee, Bengal appointed as the Trustee in his place and (2) to empower him to alter the clause relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustee as aforesaid. 5. At this stage it is necessary to emphasize that what the settlor asked for was the court's permission to revoke the clause in the Trust deed empowering him to alter the quantum of interest given to each of the beneficiaries by will alone and in its place to confer upon him power to make the said alteration by deed inter vivos. The court in specific terms ordered the revocation and granted the authority sought for. Acting under the power purported to have been given by the order of Ramfry J., the settlor executed a second Trust deed on March 22, 1938. Under that deed, in the- place of the Trustees nominated under the original deed, the Official Trustee was constituted as the sole trustee. Sachindra, (the first respondent herein) one of the sons of the settlor was deprived of all his interest as a beneficiary in the corpus of the trust properties. He was given a meagre allowance of ₹ 20 per month during his life-time. The settlor died in 1946. 6. On December 18, 1950, the first respondent filed the suit out of which this appeal has arisen praying for following declarations : (a) that the power reserved by the settlor in the original Trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of a Trust settled by him unless he had reserved for himself the power to make the variation in question. The real question for decision is whether the stipulation in the Trust deed that the variation in question can only be made by will and not otherwise is binding condi- tion. If it is held to be a material condition then the settlor must be held to have had no power to vary the same. 10. The law on the point is stated by Halsbury (1) thus Defects not of the essence. Equity relieves only against defects which are not of the essence of the power; relief will not be granted so as to defeat anything material to the intention of the donor of the power. Thus mere defects in the mode of execution will be aided, and so will an appointment by will made, under a power to appoint only by deed. But no aid will be given to an appointment by irrevocable deed made under a power to appoint only by will or to an 3rd Edn. Vol. 30 p. 272 Paragraph, 518. appointment which would result in -a fraud on the power or aid a breach of trust. Moreover, no aid will be given to the exercise by will of a power of revocation by deed if it is clear that a deed is of the essence, as where the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. His grievance was not that Ramfry, J. exercised his undoubted jurisdiction illegally but that he had no jurisdiction at all to make the order in question. 14. It is plain that if the learned judge had no jurisdiction to pass the order in question then the order is null and void. It is equally plain that if he had jurisdiction to pronounce on the plea put forward before him the fact that he made an incorrect order or even an illegal order cannot affect its validity. Therefore all that we have to see is whether Ramfry, J. had jurisdiction to entertain the application made by the settlor. 15. What is meant by jurisdiction? This question is answered by Mukherjee, Acting C. J. speaking for the Full Bench of the Calcutta High Court in Hirday Nath Roy v. Ramachandra Barna Sarma.( I.L.R. LXVIII Cal. 138.) At page 146 of the report the learned judge explained what exactly is meant by jurisdiction. We can do no better than to quote his words : In the order of Reference to a Full Bench in the case of Sukhlal v. Tara Chand ([1905] I.L.R. 33 Cal. 68.) it was stated that jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is but an exercise of that,jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a question of great nicety, as is illustrated by the decisions reviewed in the order of reference in Sukhlal v. Tara Chand([1905] I.L.R.33 Cal.68.) and Khosh Mahomed v. Nazir Mahomed((1905) I.L.R.33Cal.352.) see also the observation of Lord Parkar in Raghunath, v. Sundar Das([1914] I.L.R.42 Cal.72.) ... We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determination. A judgment pronounced by a court without jurisdiction is void, subject to the well-known reservation that, when the jurisdiction of a Court is challenged, the Court is competent to deter- mine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it : Rashmoni v. Ganada.( [1914] 20 C.I.J.213.) (emphasis supplied). 17. Finally th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal. 20. Under this provision the court could have only given opinion, advice or direction on any presented question respecting the management or administration of the trust property and not on any other matters. The relief prayed for by the settlor did not relate to the management or administration of the trust Property but on the other hand it asked for authority to alter the quantum of interest given to each of the beneficiaries by a deed inter vivos. The jurisdiction confrere on the court under s. 34 is a limited jurisdiction. Under that provision, the court has not been conferred with overall jurisdiction in matters arising under a Trust deed. The statute has prescribed what the court can do and inferentially what it cannot do. From the fact that the court has been conferred power to grant only certain reliefs it follows as a matter of law that the court has been prohibited from granting any other relief. The jurisdiction of the court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. This provision is more or less similar to s. 34 of the Trust Act. Under that provision a judge of a High Court could have only given opinion, advice or direction on any question respecting the management or administration of the trust property. Therefore the order made by Ramfry, J. cannot be justified on the basis of s. 43 of the Trustees and Mortgagees Powers Act.1866. 25. It was then said that the order in question could have been made by Ramfry, J. in the exercise of his inherent powers as a judge sitting on the original side of the Calcutta High Court. It was argued that a judge sitting on the original side of the High Court of Judicature at Calcutta has all the powers of a Chancery Judge in England as that power has been conferred on him by the Letters Patent granted to that High Court. We shall assume it to be so. We may note that the settlor did not invoke the inherent jurisdiction of the Court nor did the judge purport to exercise that power. But, still, that cannot invalidate the order made if the court had the inherent jurisdiction to make that order. Hence the real question is had he that inherent jurisdiction? Chapter XIII of the Calcutta High Court Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unlimited jurisdiction are In re Crawshay,(2) In re Morrison([1901]1 Ch. 701.) (Buckley, J.) and In re Montagu([1897] 2Ch.8.) '(Court of Appeal). In the first of these cases North, J. said: 'I should not be administering the trusts created by 'the testator if I consented to this scheme. I should be altering his trusts and substituting something quite outside the will. On the assumption that the scheme would be beneficial to the estate, I cannot decide that I have jurisdiction to authorise it' In the last mentioned case the Court of Appeal held that it had no jurisdiction to allow the trustees of a settlement to raise money by mortgage of the settled estate and to apply it in pulling down and rebuilding some of the houses on the property. Lindley, L. J. said 'We none of us see our way to hold that there is jurisdiction to make an order in this case. It is very desirable that the court should have jurisdiction to deal with such a case; but Parliament has never gone so far as to give it that jurisdic- tion. No doubt it would be a judicious thing to do what is wanted in this case, and if the persons interested were all ascertained and of age, they would probably c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at passed by Ramfry, J. 31. From whatever angle we may examine the validity of the order made by Ramfry, J., it appears clear to us, that the said order was outside the jurisdiction of the learned judge. It was not merely a wrong order, or an illegal order, it was an order which he had no competence to make. It is not merely an order that he should not have passed but it is an order that he could not have passed and therefore a void order. 32. The circumstances of the case call for certain modifications in the decree of the High Court. On the facts of this case we see no justification for treating the Official Trustee as a trustee de-son-tort and to require him to account as such. In the proceedings before Ramfry, J. the plaintiff did not choose to appear and contest. It is not his case that he was not served in that proceeding. But for the order of Ramfry, J. the settlor would have certainly altered the quantum of interest given to the plaintiff under the original Trust deed by means of a will,. As it now turned out the plaintiff has benefited by the wrong step taken by the settlor. The Official Trustee has merely carried out the order of the court. It was not open to him to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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