- (1.) HEARD the learned advocates for the respective parties. The facts of the case very briefly are as follows: by a registered deed of settlement dated 25th January, 1968 one sushil Chandra Kayal conferred life interest in respect of the suit property in favour of his second wife Nalinibala Kayal and it appears that it was stipulated in the said deed of settlement that so long as nalinibala Kayal will be alive, she will possess, enjoy and maintain the suit property by mutating her name and paying taxes and that from the income of the said property the said Nalinibala Kayal (second wife of sushil Chandra Kayal) will maintain herself and also one Kalyani kumar, as indicated in the said deed. It appears that it was further stipulated in the said deed of settlement that the said Nalinibala Kayal will never be able to sell the suit property to any person, but, Nalinibala koyal will be able to let out the said property and will also hold festival every year on the birth day of Sushil Chandra's preceptor Sri Sri sitaram Onkarnath as stipulated in the said deed. It was further stipulated in the said deed that after the demise of Nalinibala Kayal and Sushil Chandra Kayal, the nephew of Sushil Chandra Kayal, namely, Shyam Sundar Kayal will maintain and look after the said property and from the income of the said property the said Shyam sundar Kayal will look after the said Kalyani Kumar and her children and will also hold festival every year on the birth day of the said preceptor of Sushil Chandra Kayal. It appears that it was further stipulated in the said deed that the said, Shyam Sundar Kayal shall be under an obligation, after meeting the necessary expenses as stipulated in the said deed, to develop the said property for increasing its income and whatever fund remains after meeting such obligations the said fund can be utilised by the said Shyam Sundar Kayal for his personal purpose, and it was further stipulated in the said deed that the said Shyam sundar Kayal during his lifetime and before his death may appoint any person for looking after the said property. That Sushil Chandra Kayal and Nalinibala Kayal further executed a registered deed of gift dated 25th September, 1974 in respect of some property.
(2.) THAT after the death of Sushil Chandra Kayal, the said Kalyani kumar brought a suit being Title Suit No. 95 of 1979 against the said nalinibala Kayal and Shyam Sundar Kayal for partition and declaration. It appears that in the said suit Shyam Sundar Kayal was appointed as a receiver but the said suit was ultimately dismissed and the said kalyani Kumar preferred an appeal being F. A. No. 318 of 1987 in this hon'ble Court. The said Kalyani Kumar and Nalinibala Kayal along with the proforma defendants/respondent Nos. 3 to 5 entered into a compromise and the said appeal was disposed of on the basis of such compromise. It appears from the order passed by the Hon'ble Court on the basis of the said compromise that neither the said Kalyani Kumar nor the said Nalinibala Kayal and the proforma respondent Nos. 3 to 5 claimed any interest in respect of the subject matter of the deed of gift dated 25th September, 1974 which was made in favour of Shyam sundar Kayal, as aforesaid, and it was directed that the suit will be dismissed as regards the said property which is the subject matter of the said deed of gift. It was further recorded in the said order of the hon'ble Court that the terms of compromise are lawful and are made for the benefit of both the appellant (in the said appeal) as well as the respondent No. l (in the said appeal), that is, Nalinibala Kayal. It was further recorded in the said order that whatever compromise has been recorded in between the appellant (Kalyani Kumar) ano the respondent no. l (Nalinibala Kayal) and respondent Nos. 3 to 5 has been so. done without prejudice to the rights and contentions of the respondent No. 2 (Shyam Sundar Kayal) and that the Hon'ble Court did not feel it duty bound to decide upon the slender rights, if any, of the respondent No. 2 (Shyam Sundar Kayal) with regard to the rights and management over the suit property, given by the settlor in the deed of trust made by the said Sushil Chandra Kayal, which would arise on the death of the respondent No. l (Nalinibala Kayal ). The Hon'ble Court in the said order was also pleased to record that in view of the settlement arrived at, as aforesaid, the Hon'ble Court was of the view that since the property which is the subject matter of the said deed of gift in favour of Shyam sundar Kayal is in no manner prejudicially affected by virtue of the said compromise, the said Shyam Sundar cannot any more continue to exercise rights of management over the suit property, barring, of course, shyam Sundar's own property which is the subject matter of the deed of gift. The said Hon'ble Court gave liberty to the said Shyam Sundar to vindicate his rights in the appropriate legal forum, if so advised.
(3.) AGAINST the said Judgment and decree passed by the Hon'ble division Bench in F. A. No. 318 of 1987 the said Shyam Sundar Kayal preferred a special leave petition before the Hon'ble Supreme Court, and, by order dated 01. 12. 1994 the Hon'ble Supreme Court was pleased to dispose of the said petition with the observation that "it has also been further clarified in the impugned Judgment that the same would not in any manner prejudice the rights and contentions of the present petitioner, the Judgment being confined only to the dispute between the plaintiff and the other defendant. In such a situation, there is no occasion to entertain this S. L. P. by the present petitioner alone who cannot be treated as a person aggrieved by the impugned Judgment. " the learned counsel for the petitioner pointed out that in the terms of settlement, as filed in this Hon'ble Court in the said first appeal, there is a clause wherein it has been recorded that the settlement deed dated 25th January, 1968 excepting the clause 6 is revoked in terms of section 78 (a) of the Indian Trust Act and the said Kalyani Kumar and nalinibala Kayal will become absolute owners in respect of the property as mentioned in the said terms of settlement.;