TMI Blog2009 (3) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... d in part I, the remaining thirteen sons of the Nizam and the children of his deceased son, Kazim Jah were mentioned in Part II and seventeen daughters have been mentioned in part III of the third schedule. The dispute is with regard to the terms Remaining sons and Remaining Daughters Fund' expressed in the Will. The children of some of the deceased remaining sons and remaining daughters seek for a direction to the trustees to execute the Trust Deed by giving the correct interpretation to clauses 9 to 11 of the Trust Deed. The dispute lies in the interpretation of some of the important clauses of the Trust deed and particularly clauses 9 and 10 thereof. Trust Deed The preamble of the Trust Deed dated 29.03.1951 states: and WHEREAS the settler out of natural love and affection which he bears towards his relatives specified in the Third Schedule hereunder written and for diverse other good causes and considerations him there unto moving, is desirous of making a settlement of the said articles specified in the First Schedule hereunder written and of the said securities specified in the Second Schedule hereunder written in manner hereinafter appearing and WHEREAS th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner as mentioned in clause 7. 7 One such equal part to and hold the same upon the trust for Shahbada Nawab Basalat Jha Bahadur the step brother of the settler in the manner as mentioned in clause 8. 7 Three such equal parts to and hold the same upon trust for the sons, grandsons and granddaughters of the settler as mentioned in Part II of the third schedule and as mentioned in clause 9 7 The remaining three equal parts to and hold the same upon trust for the daughters of the settler specified in Part III of the third schedule to the deed and as mentioned in clause 10. Clause 9 of the Trust Deed reads as under: 9. The Trustees shall hold the said three equal parts of the Principal Fund allocated to the sons, grandsons and grand daughters of the Settlor mentioned in part II of the Third Schedule hereunder written (hereinafter called the Remaining Sons' Fund UPON TRUST to divide the same or to treat the same as notionally divided into 126 (One hundred twenty six) equal units and to allocate such 126 units to the respective beneficiaries specified in part II of the Third Schedule hereunder written in the respective proportions set opposite their respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Remaining Sons' Fund allocated to such beneficiary as aforesaid UPON TRUST to divide the same into two equal parts and to allocate one such equal part to the remaining beneficiaries specified in Part II of the Third Schedule hereunder written (including 7(seven) grandchildren of the Settlor specified in item 14 of Part II of the Third Schedule hereunder written). In the shares and the proportions mentioned against their respective names in second column thereof and to allocate the other such equal part to the daughters of the Settlor specified in the part III of the Third Schedule hereunder written in equal shares and proportions and to hold and stand possessed of the respective shares which on such division and allocation shall go through respective beneficiaries specified in Parts II and III of the Third Schedule hereunder written Upon Trust to add the same to and amalgamate the ame with the respective units of the Remaining Sons' Fund or the Remaining Daughters' Fund hereinafter referred to (as the case may be) originally allocated to them respectively under the provisions of this clause and the next succeeding clause 10 hereof provided further that if any of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed of the respective shares which on such division and allocation shall go to the respective beneficiaries specified in parts II and III of the Third Schedule hereunder written UPON TRUST to add the same to and amalgamate the same with the respective units of the Remaining Sons' Fund or the Remaining Daughters' Fund (as the case may be) originally allocated to them respectively under the provisions of the preceding clause (9) hereof and this Clause and to hold the same respectively upon the same respective units as those upon which the respective original units to which they are added and with which they are amalgamated as aforesaid are directed to be held under the provisions of the preceding clause 9 hereof and this clause. Clause 11 is a residuary clause providing for the manner in which the trust is to be applied in respect of the ultimate beneficiaries. Enactment The State enacted the Nizam's Trust Deeds (Validation) Act, 1950 (for short the 1950 Act ). It received the Presidential Assent on 22.06.1950. Section 3 of the 1950 Act provides that notwithstanding anything contained in any other law for the time being in force, trust deed mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustees restraining them mis-interpreting or wrongly applying the provisions of clauses 8 to 10 of the Trust Deed, or (3) Restraining the trustees from making allocations or amalgamations of Trust Funds concerned and making any payments, without giving two weeks advance notice to plaintiffs. Forty similarly placed children of the deceased sons and daughters filed another suit which was marked as O.S. No. 540 of 1998 for declaration that they have vested rights in the corpus and accretion of the remaining sons fund' to the extent of ₹ 2,22,99,200/-. In the aforementioned suit, heirs and legal representatives of the grand children of the settler were impleaded as parties. In the said suit, the following three issues were framed: 1. Whether the plaintiffs are entitled for declaration in respect of the corpus fund as prayed for? 2. Whether the plaintiffs are entitled for mandatory injunction against the defendants and their successor trustees and secretary of the defendant no. 1 Trust, as prayed for? 3. Whether the plaintiffs are entitled for perpetual injunction against the defendants and their successor trustees and secretary of the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd column thereof and to allocate the other such part to the daughters of the settlor specified in part - III of the Third Schedule hereunder written, in the equal shares and proportions. Similarly, the direction is repeated for clause 10(e). This direction can be implemented only if the contention of the children of deceased remaining sons and daughter is accepted. Then only the units allocated to the deceased remaining sons or remaining daughters can be distributed in shares and proportions as mentioned against their respective names in the second column thereof. If the interpretation of Trustees and surviving remaining sons and daughters is accepted, this direction of the Settlor cannot be implemented, for the reasons that consequent upon death, some of the remaining sons and daughters, there cannot be 126 units in Part II or 17 units in part - III . (v) ...The Settlor did not use the word remaining daughters in clause 9(e) or remaining sons or grand children in clause 10(e) ... On the plea that nothing is left to be amalgamated in case of units of predeceased sons and daughters as the corpus was already given to them, the learned Judge noted: (a) Some of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary jurisdiction, the order in so far as it relates to the preliminary issues in the two suits is concerned is unquestionable on the point of jurisdiction... (ii) ...The petitioners who preferred these two revision petitions have surprisingly not filed appropriate proceedings as against the order pertaining to the two suits. In that view of the matter, the common order becomes unassailable except holding that the original petitions are not maintainable. Despite the aforementioned findings, the High Court proceeded to consider the merit of the matter holding: (i) ...The various legal pleas thus raised by the learned counsel for the petitioners attacking the Trust deed and the Nizam's trust Deeds Validation Act and the Validation Amendment Act are therefore not tenable and cannot be countenanced . (ii) ...In both these cases, suits ought to have been filed under Section 9 of the Civil Procedure Code before the appropriate courts, but not the original petitions before the Principal Civil Court of original jurisdiction. The position is clear and both the petitions cannot be maintained under Section 56 and 61 of the Trusts Act... (iii) ...The int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the City Civil Court shall not be given effect to pending notice. This Court by an order dated 10.04.2000 issued notices in the special leave petitions filed by the respondents. By an order dated 21.01.2000, special leave to appeal has been granted, observing: pending the disposal of the appeal, the High court may proceed to hear and dispose of CCA No. 114 of 2000 but it shall do so independently and uninfluenced by the judgment and order under challenge insofar as it deals with the merits. Submissions Mr. P.P. Rao, learned senior counsel appearing on behalf of the appellant, would raise the following contentions: (i) Whether in view of the fact that the civil revision applications were filed against the order dated 21.07.1999 passed in original applications which having been found to be not maintainable, the High Court should have held that the civil revision petitions were also not maintainable. (ii) Respondents having not filed any appeal or civil revision application against the order dated 3.04.2000 passed in the original suits filed by the appellants, the respondents would be deemed to have abandoned the remedies available to them. (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed issueless. (xi) The trustees in implementing the deed of trust could not have ignored a well thought of scheme of the settlor in terms whereof he intended to make no discrimination between the heirs and legal representatives and by reason whereof, he intended to make provisions not only for the children and grand-children who were then alive but also for the grand-children and great-grand children who were yet to be born. (xii) From a perusal of the deed of trust, it would be evident that wherever the settlor intended to grant special benefit either to a heir or to a trust, he having specifically provided therefor. Having regard to the fact that the heirs and legal representatives of the deceased's son or daughter having not been excluded, the High Court could not have interfered with the well-reasoned findings of the Chief Judge, City Civil Court. (xiii) The principle in the original applications as also the suits being primarily directed against the trustees, the heirs and legal representatives of the daughters were required to be impleaded. Mr. Dushyant A. Dave, learned senior counsel appearing on behalf of the respondents, and Mr. Rajendra Choudhary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having got the benefits cannot claim any benefit once over again on the ground that they were also entitled as heirs and legal representatives of the pre-deceased sons and daughters who had died issueless. (xi) Special leave having been granted, in the peculiar facts and circumstances of this case, this Court should exercise its discretionary jurisdiction under Article 139A of the Constitution of India and render a final decision in the matter keeping in view the passage of time. (xii) Article 136 of the Constitution of India should be widely construed so as to take into consideration a situation of this nature where a litigation based on construction of a deed may finally be adjudicated upon by this Court. (xiii) As no decree had been passed in the suit, it would not be correct to contend that the preliminary question raised would be a preliminary issue as envisaged under Order XIV, Rule 1 of the Code of Civil Procedure. (xiv) Once a leave has been granted, any decision rendered thereon could attract the doctrine of merger as has been held by this Court in Kunhayammed and Others v. State of Kerala and Another [(2000) 6 SCC 359]. Our Findings The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the principle of res judicata applies in different stages of the same proceedings, it was held: ...Here what is sought to be reagitated is not really the order of remand but the order deciding a germane issue which was allowed to become final at an earlier stage of the same suit. The principle of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be reagitated by him at a subsequent stage in the same suit or proceedings. This position is laid down in Hope Plantations Ltd. v. Taluk Land Board to which one of us (Syed Shah Mohammed Quadri, J.) was a party. However, as noticed hereinbefore, in this case, an appeal from a final decree is maintainable. Ordinarily again a special leave petition would not be entertained directly from a judgment and order of the Chief Judge, City Civil Court, Hyderabad. [See Chandi Prasad Chokhani (supra)] Maintainability of the civil revision application has been questioned inter alia on the premise that an interpretation of a deed involves a question of fact and not a question of jurisdiction. Mr. Rao has placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party. A civil revision application although must necessarily having regard to the terminologies used in Section 115 of the Code of Civil Procedure involve the question of jurisdiction, the question which would arise is as to what are the jurisdictional questions. A jurisdictional question may arise not only when a court acts wholly without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction. There are various facets of jurisdictional errors'. Taking into consideration any irrelevant fact or non-consideration of a relevant fact would involve jurisdictional issue. This aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretionary jurisdiction is to be exercised keeping in view the fact and circumstance of each case and no hard and fast rule can be laid down therefor. There is another aspect of the matter which cannot also be lost sight of. Applications were filed before the District Court also under Sections 56 and 61 of the Indian Trusts Act praying for issuance of directions to the trustees. Such directions if issued ordinarily would be binding on them. The trustees, therefore, would be entitled to take recourse to a remedy available before a superior court, if they are aggrieved by such direction. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice-versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out. Furthermore, this trust deed is not an ordinary one. It is a part of a statute. In the case of a wrong interpretation of a s ..... 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