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440 The first contention on behalf of respondents is that the plaintiff being a benamidar, he is not entitled to seek possession of the land on the basis of his title as full and absolute owner of the suit lands. Ratio |
The High Court in this connection has not specifically dealt with this contention though the trial Court raised a specific issue in respect of it and answered it in favour of the plaintiff '. Ratio |
The High Court has, however, ob served that the plaintiff 's father was the real owner of the suit lands and he was managing the property although the patta was issued in the name of his son, the plaintiff. Ratio |
The High Court then observed that Kazinm Yar Jung for the reason that he was an employee of the Nizam in order to avoid embarassment to himself nominally made the plaintiff, his minor son, the pattadar. Ratio |
In the opinion of the High Court this is borne out by the fact that after executing the Power of Attorney, Ext.P 1 in favour of defendant 1, he wrote to the Tahsildar, Medak on 20th October 1949 that his son was a benamidar and that the lands may therefore be transferred in his name. Ratio |
However, after making these observations the High Court has not chosen to non suit the plaintiff on the ground that he n was a benamidar Undoubtedly, Kazim Yar Jung was holding a high office in Nizam 's Government It is rational to believe that he may have influenced the decision of the Nizam to grant the land and that... |
The patta may, therefore, have been grant ed in favour of his minor son, the plaintiff. Ratio |
Does that make the plain tiff a benemidar Section 82 of the , provides that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must... |
Now, there is no evidence to show that the patta was for consideration. Ratio |
It is said that there was a grant of land and it is not clear that it was meant to be a gift of land. Ratio |
Even if the Nizam in appreciation of the services rendered by the plaintiff 's father granted the land to the plaintiff, it could not be said that any consideration flowed from the father of the plaintiff so as to make the plaintiff a benamidar. Ratio |
The genesis of the concept of benami is the consideration for a transfer must flow from one person and the transfer is taken in the name of the other person and the consideration so flowing for the transfer was not intended to be a gift in favour of the person in whose name the transfer is taken All these ingredients o... |
441 lt was also contended that the plaintiff came to the Court with an allegation that defendant 1 induced the plaintiff, his father and brother to execute a nominal Power of Attorney in favour of defendant No. 34, and defendants 1 and 34 in collusion with each other defrauded the plaintiff his property. Ratio |
It was said that if defendants 1 and 34 were the perpetrators of the fraud, the plaintiff having compromised with them and withdrawn the appeal against them, the appeal would not survive against the rest. Ratio |
There is absolutely no merit in this contention. Ratio |
The plaintiff may have valid reasons for entering into a compromise with defendants 1 and 34 who might have made good a part of the loss suffered by the plaintiff. Ratio |
But apart from the allegation of fraud, the suit was substantially based on the scope of authority conferred by Exts.P l and P 2 to sell lands and the acquisition of the title by the purchasers From the attorney defendant 34 in exercise of the authority conferred by Exts. Ratio |
P l and P 2 and, therefore, a compromise with defendants 1 and 34 would not render the appeal against the rest of the defendants infructuous or untenable. Ratio |
The third contention was that the plaintiff left India and his evidence having remained incomplete, the same could not be read in evidence. Ratio |
After we explained the relevant documents, we are satisfied that there is no substance in this contention. Ratio |
As all the contentions raised by the appellant fail, the appeal fails and is dismissed with costs. RPC |
N.V.K. Appeal dismissed . RPC |
Civil Appeal Nos. 722, 1016 and 1221 of 1967. FAC |
Appeal from the Judgment and Decree dated 9 8 1966 of the Bombay High Court in Appeal Nos. 31 and 34 of 1963. FAC |
K. D. Mehta and D. N. Mishra for the Appellant In CA 722/67. FAC |
section T. Desai, R. B. Datar and Girish Chandra for RR 3 and 65 in CA 722/67. FAC |
I. N. Shroff and H. section Parihar for R 48 in CA 722/67. FAC |
section T. Desai, R. B. Datar for the Appellant and Respondent 40 in 1016/67. FAC |
I. N. Shroff and H. section Parihar for RR 27 28 in CA 1016/67 and also for the appellant in CA 1221/67. FAC |
section T. Desai and Girish Chandra for Respondent No. 63 in CA 1221/67. FAC |
The Judgment of the Court was delivered by PATHAK, J. FAC |
These appeals, on certificate granted by the High Court of Judicature at Bombay, are directed against the judgment and order 703 dated August 9, 1966 passed by the High Court in its appellate jurisdiction against orders and directions issued by a learned Single Judge of the High Court on a petition filed by the Officia... |
On July 21, 1911, His Majesty King George V issued Letters Patent conferring the "dignity, state and degree" of a Baronet of the United Kingdom of Great Britain and Ireland on Sir Currimbhoy Ebrahim of Bombay and the heirs male of his body lawfully begotten and to be begotten. FAC |
In order to provide for the upkeep and dignity of the Baronetey, the then Governor General of India in Council enacted the Sir Currimbhoy Ebrahim Baronetcy Act, 1913 (hereinafter referred to simply as "the Baronetcy Act") by virtue of which considerable properties belonging to Sir Currimbhoy Ebrahim were settled upon t... |
The Trust was created by statute at the instance of Sir Currimbhoy Ebrahim. FAC |
The Trustees who included the Baronet for the time being and three officials of the Government of Bombay designated by their office, were constituted as a Corporation with perpetual succession and a common seal for the purpose of executing the trusts, powers and purposes of the Act. FAC |
By virtue of section 8 of the Baronetcy Act, the residue of the income from the properties settled under trust, after payment to the credit of a Sinking Fund and a Repairs Fund, and payment of rates, taxes and cost of ordinary repairs in respect of buildings comprising the trust properties was to be paid to the First B... |
The successive Baronets were also entitled in the circumstances mentioned in section 10 to the use and benefit of additional hereditaments vesting in the Corporation. FAC |
Section 27 provided for the vesting of the trust properties and funds "upon failure and in default of heirs male of the body of the last Baronet". FAC |
The First Baronet, Sir Currimbhoy Ebrahim, died on May 29, 1924 leaving behind a Will dated October 22, 1916 in respect of certain other properties. FAC |
His oldest son, Mohamedbhoy, assumed the title and became the Second Baronet. FAC |
Mohamedhoy died on March 31, 1928. FAC |
He was succeeded by his son, Hussainbhoy, who became the Third Baronet. FAC |
The third Beronet migrated to Pakistan some time between 1947 and September, 1949. FAC |
On September 29, 1949 he was declared an evacuee under the Bombay Evacuees (Administration of Property) Act, 1949, and certain properties belonging to him were declared vested in the Custodian of Evacuee Property by an order of that date. FAC |
704 On November 15, 1949, a notification was issued under sub.s.(1) of s.7 of the Administration of Evacuee Properties Ordinance, 1949 notifying two further immovable properties as well as the right, title and interest of the Third Baronet in the Sir Currimbhoy Ebrahim Baronetcy Trust as evacuee property vesting in the... |
An appeal by the Third Baronet against the orders dated September 29, 1949 and November 15, 1949 was dismissed by the Custodian of Evacuee Property on February 13, 1950. FAC |
Two years later, on March 4, 1952, the Third Baronet died in Pakistan. FAC |
He was succeeded by his son, Mohamedbhoy, as the Fourth Baronet. FAC |
It seems that Mohamedbhoy was at the time residing in India, but shortly thereafter he left for Pakistan. FAC |
On June 10, 1952, the Deputy Custodian of Evacuee Property made an order declaring the Fourth Baronet an evacuee under the and directing that his beneficial interest in the Sir Currimbhoy Ebrahim Baronetcy trust be notified as evacuee property. FAC |
Therefore, on June 16, 1952, a notification was issued under sub s.(3) of s.7 of the declaring that the beneficial interest of the Fourth Baronet in the Sir Currimbhoy Ebrahim Baronetcy Trust was evacuee property vesting in the Custodian of Evacuee Property The Fourth Baronet preferred an appeal to the Custodian Genera... |
Meanwhile, the Fourth Baronet having migrated to Pakistan alongwith his son Zoolfikar Ali, the Bombay Legislature passed an Act titled the Sir Currimbhoy Ebrahim Baronetcy (Repealing & Distribution of Trust Properties) Act, 1959, which we shall refer to as "the Repealing Act)" The Act, as its name shows, repealed the B... |
It provided for the vesting of the properties and funds in the Official Trustee, Bombay for the purpose of distributing them "amongst the persons rightfully entitled thereto according to law". FAC |
Acting under the Repealing Act, the Official Trustee called upon persons claiming interest in the "trust properties", an expression which includes the properties and funds settled and created under the Baronetcy Act, to submit their claims. FAC |
As he found that the claims were contested and was unable to say which of them were justified, he applied to the Bombay High Court under sub section(2) of section 7 of the Repealing Act for orders and directions as regards the distribution of 705 the trust properties amongst the several claimants. FAC |
The properties were valued at Rs. 30 lakhs for the purposes of court fees. FAC |
The petition was entertained in the High Court under its general and inherent jurisdiction and was registered as Trust Petition No. 3 of 1962. FAC |
It was disposed of by Tarkunde, J.On December 20, 1962. FAC |
A contention raised by some of the claimants that the Repealing Act was ultra vires was rejected. FAC |
As regards the claim of the Custodian of Evacuee Property, the learned Judge took the view that the beneficial interest of the Fourth Baronet, which had vested in the Custodian, came to an end on the extinction of the trust and the Custodian was not entitled to the share of the Fourth Baronet in the trust properties. F... |
He ordered, however, that so much of the net income of the trust properties accruing upto March 15, 1960, as had remained unpaid be transferred to the Custodian. FAC |
He rejected the claim to maintenance made by the Third Baronet 's widow, the Dowagar Lady Amine Currimbhoy Ebrahim. FAC |
On the material before him the learned Single Judge held that the Repealing Act had the effect of giving rise to a resulting trust in favour of the Settlor, the First Baronet, that the trust properties reverted to his estate as on his death on May 29, 1924 and that they must be deemed to pass by inheritance according t... |
He observed that the residuary clause in the will dated October 22, 1916 executed by the First Baronet did not cover the rust properties. FAC |
On those findings, he directed the Official Trustee to distribute the net trust properties amongst the several claimants according to the shares mentioned in an agreed statement subscribed to by the claimants. FAC |
Against the order of Tarkunde, J., two appeals were filed in he High Court. FAC |
Appeal No.31 of 1963 was filed by the Dowagar Lady Amine Currimbhoy Ebrahim, the Fourth Baronet, Sir Currimbhoy Ebrahim, and his son, Zoolfikar Ali Currimbhoy Ebrahim, and Appeal No. 34 of 1963 was filed by the Custodian of Evacuee Property. FAC |
The appeals were heard by a Division Bench of two learned Judges, Kotval, C.J. and Mody, J. The Division Bench rejected the challenge to the constitutional validity of the Repealing Act, but on the point whether a resulting trust had come into existence the learned Judges held that in view of the surrounding circumstan... |
Accordingly, the learned 706 Judges laid down that the Fourth Baronet was entitled to the trust properties absolutely in his own right. FAC |
On the claim of the Dowager Lady Amine Currimbhoy Ebrahim, they pointed out that her son, the Fourth Baronet, had made a statement through counsel in court that the would pay the amount to her out of the corpus received by him. FAC |
Appeal No.31 of 1963 was allowed in part. FAC |
In regard to the appeal filed by the Custodian of Evacuee Property, the learned Judges rejected his claim to the corpus of the trust properties, holding him entitled to a sum of Rs. 1,334.06 only, representing the unpaid amount of the net income of the trust properties upto March 14, 1960. FAC |
Appeal No.34 of 1963 was dismissed. FAC |
Three appeals have been filed in this Court. FAC |
Civil Appeal No.722 of 1967 has been filed by Sir Fazalbhoy Currimbhoy, Civil Appeal No. 1016 of 1967 has been filed by the Custodian of Evacuee Property and Civil Appeal No.1221 of 1967 has been filed by Munira Fazal Chinoy and Mumtaz Mohamed Rahimtoola, daughters of the Third Baronet. FAC |
The case of Sir Fazalbhoy Currimbhoy, the appellant in Civil Appeal No.722 of 1967 is that the effect of the Repealing Act on the trusts created by the Baronetcy Act is to revoke and extinguish those trusts and to give rise to a resulting trust in favour of the estate of the First Baronet as on the date of his death, a... |
The case of Munria Fazal Chinoy and Mumtaz Mohamed Rahimtoola, the appellants in Civil Appeal No.1221 of 1967 is that no resulting trust comes into existence consequent on the repeal because a contrary intention must be presumed in the First Baronet that the trust properties should go to the Fourth Baronet. ARG |
It is also contended by these appellants that alternatively the trust must be deemed to have extinguished on the death of the Third Baronet and that the trust properties devolved on them, their mother the Dowager Lady Amine Currimbhoy and the Fourth Baronet as the heirs of the Third Baronet. ARG |
The case of the Custodian of Evacuee Property, the appellant in Civil Appeal No. 1016 of 1967 is that the trust properties would ordinarily have passed to the Fourth Baronet but because of sub s.(4) of s.7 of the Repealing Act the Official Trustee is required to transfer and vest the trust properties in the Custodian. ... |
It is contended on behalf of Sir Fazlbhoy Currimbhoy that the trust having been created by the Baronetcy Trust Act, a legislative statute, it must be regarded as a statutory trust and, thereafter, when the Baronetcy Act was repealed and the trust was revoked and 707 extinguished by the Repealing Act, another legislativ... |
Now, no doubt the trust was created by statute. Ratio |
But it was created at the instance of the First Baronet. Ratio |
It had to be a trust in perpetuity in order that the upkeep of the dignity and title of the Baronetcy should always be ensured. Ratio |
A trust such as this has been regarded as a private trust. Ratio |
Indeed, throughout the trial before the learned Single Judge and during the hearing of the appeals before the Division Bench of the High Court the case proceeded on the footing that the trust created by the Baronetcy Act was governed by the law relating to a private trust. Ratio |
The parties proceeded as if the trust was a private trust created directly by the First Baronet himself, and it was assumed throughout that the repeal by the legislature was a repeal effected by him. Ratio |
We must, therefore, proceed in this case as if we are dealing with a private trust. Ratio |
The contention on behalf of Sir Fazalbhoy Currimbhoy that a resulting trust follows the revocation and extinction of the trust created by the Baronetcy Act rests on the provisions of section 83 of the Indian Trusts Act. ARG |
Section 83 provides: "83.Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust property, the trustee, in the absence of a direction to the contrary, must hold the trust property, or so much thereof as is unexhausted, for the benefit of the author of the tru... |
" The section incorporates in codified form the concept of what is known as a resulting trust. Ratio |
On the terms of section 83, a resulting trust can arise only "in the absence of a direction to the contrary". Ratio |
It is not disputed that if there is no direction to the contrary the trust properties must be held for the benefit of the estate of the First Baronet. Ratio |
Can an intention to the contrary be inferred? Ratio |
Scott on Trusts declares: "If an owner of property transfers it inter vivos upon a trust which fails either at the outset or subsequently, and he has not indicated what disposition should be made of the property in the event of the failure of the trust, the trustee cannot retain it but will be compelled in equity to 70... |
In such a case the trustee holds the property upon a resulting trust for the settlor. PRE |
Since the trustee was not intended to have the beneficial interest, and since the beneficial interest was not otherwise disposed of, it reverts or results to the settlor. Ratio |
On the failure of the trust the court will put the parties in status quo by restoring the property to the settlor. Ratio |
But if the settlor properly manifested an intention that no resulting trust should arise in the event of the failure of the trust, it will not arise, but the property will be disposed of in accordance with his intention, whether that intention is expressed in specific language or not. Ratio |
No resulting trust arises if it appears by evidence properly admissible that in the event of the failure of the trust the property should be transferred by the trustee to a third person, or held upon a different trust, or that it should be retained by the trustee free of trust. Ratio |
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