RABINDRA N DAS Vs. SANTOSH KUMAR MITRA

JUDGEMENT

(1.) This suit was originally instituted by one Asit Kumar Sarkar and Debasis Sarkar claiming to be trustees in respect of premises No. 49B, Sashi Bhusan Dey Street, Calcutta against the defendants. Thereafter, Rabindra Nath Das was substituted in the place and stead of the original plaintiffs. About the substitution I will deal later. The case of the plaintiff is that premises No. 49B, Sashi Bhusan Dey Street, Calcutta, originally belonged to one Smt. Provabati Biswas (since deceased) who during her lifetime by a deed of settlement and/or trust dated 2nd of July, 1946 had settled the said premises for the purposes and/or trust for the benefit of the persons and for the objects therein mentioned in the said deed of trust. About the said deed of trust I will also deal later on. According to the plaintiff the original trustees, viz., Smt. Provabati Biswas and Shri Pradyut Kumar Sarkar acted as trustees and gave effect to the said trust. The original defendants Nos. 1 and 2 are brothers of Smt. Provabati Biswas and at all material times the original defendant No. 1 was a tenant in respect of two rooms on the first floor of the premises under the said trustees and after the death of Smt. Provabati Biswas under the said Pradyut Kumar Sarkar, as the sole surviving trustee. On the 29-5-53 it is stated Suit. Provabati Biswas died intestate and since her death Pradyut Kumar Sarkar acted as the sole surviving trustee in respect of the said premises. It was further stated that upon the death of Smt. Provabati Biswas one Kshitish Chandra Mitra purported to claim title to the said premises by setting up a will of Smt. Provabati Biswas. It is further the case of the plaintiff that until 22nd July, 1964 the entire second floor of the premises had been in possession of one Biswarup Sengupta as a tenant under the trustees and after the death of Provabati Biswas under the said Pradyut Kumar Sarkar. The said Biswarup Sengupta according to the plaintiff duly surrendered the tenancy and vacated the said room on or about 30th May, 1959. Thereupon Kshitish Chandra Mitra objected to the right of the said Pradyut Kumar Sarkar to take possession of the second floor from the said Biswarup Sengupta and threatened to take forcible possession thereof and to institute the criminal proceedings against Pradyut Kumar Sarkar. Thereupon, an agreement was arrived at on or about 31st May, 1959 which has been set out in paragraph 9 of the plaint. A writing dated 31st May, 1959 has" also been annexed. The application for probate of the will referred to hereinbefore was contested by Pradyut Kumar Sarkar and the original defendant No. 1 Satyendra Kumar Mitra and upon contest the said testamentary suit was dismissed on 19th May, 1964 and probate of the will was refused. On 6th of November, 1956 the said Pradyut Kumar Sarkar as sole surviving trustee instituted a suit against the original defendant No. 1 in the Small Causes Court, Calcutta for ejectment of the original defendant and for recovery of the possession of the two rooms on the first floor of the said premises from the original defendant No. 1 of which the original defendant No. 1 had been a tenant. On the 15th February, 1959 a decree was passed by the Court of Small Causes Court, Calcutta in favour of said Pradyut Kumar Sarkar against the said original defendant No. 1 for delivery of vacant possession of the two rooms on the first floor of the said premises by the original defendant No. 1 to the said Pradyut Kumar Sarkar. Thereupon an application for execution of the said decree was made which is still pending according to the plaintiff. It is the case of the plaintiff that on or about 22nd July, 1964 the defendants Nos. 1, 2, 3 and 4 in collusion and conspiracy with each other wrongfully and illegally broke open the said padlock on the doors of the rooms of the second floor and trespassed therein and took forcible and illegal possession of the said second floor and were still continuing to be in such possession. The original defendant No. 1 Satyendra Kumar Mitra died intestate during the pendency of the suit. The present defendant No. 1 Santosh Kumar Mitra and the defendants Nos. 3, 4 and 5 are the sons of the original defendant No. 1. The defendant No. 6 is the daughter's daughter of the original defendant No. 1 and the defendant No. 7 is the husband of the defendant No. 6 and grand son-in-law of the original defendant No. 1. Pursuant to the provisions contained in the said deed of settlement according to the plaintiff the said Pradyut Kumar Sarkar in exercise of his power and/or right of nomination by a registered deed of appointment dated 21st November, 1964 duly nominated and/or appointed the original plaintiffs Asit Kumar Sarkar and Debasis Sarkar to be the successors to act as trustees in respect of the said premises. On or about 21st November i. e. on the date of the said nomination said Pradyut Kumar Sarkar died. Since the death of said Pradyut Kumar Sarkar the original plaintiffs according to the plaintiff became the trustees of the laid premises and again on the 28th April, 1965 the defendants in collusion and conspiracy with each other wrongfully and illegally trespassed into and took possession of the room on the 3rd floor of the premises according to the plaintiff by forcibly breaking open the said padlock. It is further stated that after the institution of the suit on the 6th January, 1969 Asit Kumar Sarkar died intestate without nominating and/or appointing anyone to act as trustee in his place and since his death the original plaintiff No. 2 Debasis Sarkar became the sole surviving trustee under the said Deed of Settlement. Thereafter by a registered deed of nomination and appointment dated 14th March, 1969 the original plaintiff No. 2 Debasis Sarkar appointed and/or nominated Dwijendra Nath Basu as trustee in his place and stead under the said deed of settlement and/or trust dated July 2, 1946 with immediate effect from the execution of the said deed. By an order dated 21st April, 1970, the death of Asit Kumar Sarkar was recorded and the said Dwijendra Nath Basu was brought on the record as the plaintiff by an order in this suit. Again on the 21st April, 1970 on the application of the said Dwijendra Nath Basu the heirs of the original defendant No. 1 Satyendra Kumar Mitra who died on the 30th October, 1969 were substituted. Thereafter, on the 28th December, 1968 (sic) the laid Dwijendra Nath Basu who was a Hindu governed by the Dayabhaga School of Hindu Law died intestate and unmarried, leaving him surviving only brother Dipak Kumar Basu and his only sister Preeti Rani Basu as his only heirs and legal representatives under the Hindu Succession Act, 1956 without nominating or appointing any trustee to the said trust estate. It is stated that by a registered deed of nomination and/or appointment of trustee dated 7th April, 1973 the said Dipak Kumar Basu and Smt. Preeti Rani Basu as the heirs and legal representatives of the said Dwijendra Nath Basu since deceased under the authority of law had appointed the plaintiff Rabindra Nath Das as a trustee to the said trust estate and trust premises and by virtue of the said appointment Rabindra Nath Das is acting as such trustee.

(2.) The plaintiff claims mesne profits and/or damages at the rate of Rs. 10/- per day for the 2nd floor and Rs. 2/- per day for the third floor until delivery of possession and claims possession of the said premises from the defendants.

(3.) There are four different sets of written statements on behalf of the defendants but the defence taken is more or less identical. Reference, therefore, can only be made to the written statement on behalf of the defendant No. 2. In the said written statement it has been denied that Provabati Biswas in her lifetime by a deed of settlement settled the premises as alleged. It is stated that from the records of the suit No. 1748 of 1953 which was instituted by Smt. Provabati Biswas it appeared that it was alleged by the said Smt. Provabati Biswas that she had requested Prodyut Kumar Sarkar to have a power of attorney for the purpose of recovering the rents, issues and profits on behalf of the said Provabati Biswas. On the 2nd July, 1946 the said Prodyut Kumar Sarkar fraudulently made or induced the said Provabati Biswas to sign a document on the representation that the same was a power of attorney. The said Provabati Biswas, it is alleged who had no knowledge of the English language, relied upon the said representation made bv Pradyut Kumar Sarkar and signed the document; and it was only in the beginning of January, 1953 that the said Provabati Biswas came to know for the first time of the aforesaid fraud practised upon her and thereupon instituted the suit. The defendants denied that the document described as deed of trust, copy whereof was annexed to the plaint, was ever intended to be acted upon. It was further denied that the trustees or any of them ever acted as trustees or gave effect to the said trust. It was further stated that the original defendants Nos. 1 and 2 were brothers of Smt. Provabati Biswas. It was denied that the defendant No. 1 was a tenant in respect of the two rooms in the first floor of the premises No. 49-B, Sashibhusan Dey Street or that after the death of Smt. Provabati Biswas, the original defendant No. 1 became a tenant under Pradyut Kumar Sarkar as a trustee or at all. It has been denied that after the death of Smt. Provabati Biswas, Pradyot Kumar Sarkar became the sole surviving trustee or could have acted as such. It has been stated that Biswarup Sengupta was a tenant of a portion of the said premises No. 49-B, Sashibhusan Dey Street under the original defendants Nos. 1 and 2 after the death of Sm. Provabati Biswas. It has been denied that Biswarup Sengupta was a tenant of the premises in respect of the second floor at any time under the trustee. It has been denied that Prodyot Kumar Sarkar ever took possession of the premises front Biswarup Sengupta as alleged in the plaint or could have taken possession. The alleged disputes between Kshitish Chandra Mitra and Prodyot Kumar Sarkar were also denied and the arrangement about the room which had been referred to in the plaint was also denied by the defendants. The defendants in particular denied about any writing dated 31st March, 1959 as alleged in the plaint. It was denied that Prodyot Kumar Sarkar was or could have been the sole surviving trustee or he had any right to institute any suit against the defendant No. 1 for recovery of possession or that the original defendant No. 1 was a tenant under Prodyot Kumar Sarkar. The allegation about the breaking open of the (sic) on the 22nd July, 1964 and taking possession on that date in collusion and conspiracy is also denied by the defendants. It is denied that Prodyct Kumar Sarkar had any power of authority or any right under the provisions of the said deed of trust, which is challenged by the defendants as fraudulent, illegal and void document or there could have been any nomination or appointment under the said alleged deed of trust. The quantum of mesne profits claimed is also denied and disputed.