- (1.) THIS first appeal is at the instance of the defendant Nos. 1 and 2 in a suit for declaration and permanent injunction and this appeal is preferred against the judgment and decree dated 30th May, 1998, passed by the learned Trial Judge, Eleventh Bench, City Civil Court at Calcutta in Title Suit No. 270 of 1994 thereby passing a decree in the said suit.
(2.) THE respondent filed a suit being Title Suit No. 270 of 1994 against the appellants for declaration that sale of premises No. 7/1, Jhamapukur Lane, Calcutta effected on 16th December, 1992 by the defendant No. 2 in favour of the defendant No. 1 was void, inoperative and not binding upon the plaintiff and for further declaration that the defendant No. 1 was not the owner of the said premises by purchase from the defendant No. 2. The plaintiff further prayed permanent injunction restraining the defendant No. 1, her men and agents from transferring, assigning for otherwise dealing with the said premises.
(3.) THE case made out by the plaintiffs may be summed up thus: a) At all material time, the premises No. 7/1, Jhamapukur Lane belonged to one Pratul Chandra Boral, the father of the plaintiff and the defendant No. 2 and the paternal grandfather of the proforma defendants, who purchased the said premises by an indenture of conveyance dated 29th January, 1934. b) While the said Pratul Chandra Boral was in possession of the said property, he executed a deed of settlement on 18th April, 1934 and settled the property in favour of one Smt. Surabala Debi as a trustee to hold the said property during her natural lifetime for her own use and occupation without any power of alienation or disposal. The said deed of settlement provided that subject to the restrictions of enjoyment of the trust property, the trust property would vest upon the death of the said Smt. Surabala to such or all the three sons of Pratul Chandra Boral, i. e. the plaintiff, the defendant No. 2 and one Rai Charan Boral, since deceased, as the said Smt. Surabala would choose during her lifetime. It was further provided that in case of failure on the part of the said Smt. Surabala to make such a choice, all the aforesaid three sons of Pratul Chandra Boral would become the ultimate owners on the death of Smt. Surabala. c) Shortly after the execution of the said settlement deed, Smt. Surabala set up an idol of Laxmi Narayan Jew and installed the same in the trust property with the full knowledge and consent of the settlor and subsequently, on 8th July, 1941 the said Pratul Chandran Boral executed a further registered deed revoking the power of Smt. Surabala Debi of appointing in her absolute discretion anyone or more of the three sons of the settlor in whom the right of enjoyment of the trust property would vest as provided in the trust deed of the year 1934. The subsequent deed of the year 1941 provided that the trust property would be held and enjoyed by Smt. Surabala in the manner provided in the earlier deed of settlement but she would hold the trust property for the benefit and worship of the idol viz. Laxmi Narayan Jew. d) The said deed of 8th July, 1941 empowered Surabala to appoint by the deed or by will anyone or more of the three sons of the settlor for proper maintenance and worship of the said idol. e) On 30th May, 1974 Surabala died and shortly thereafter, the youngest son of the settlor namely, Radha Charan Boral, the defendant No. 2, made representation in writing to the tenants that Smt. Surabala appointed him as trustee to hold the trust property for the benefit of the said idol. Such representation was made behind the back and without knowledge of the plaintiff and on that basis, the tenants started paying rent to the defendant No. 2 believing him to be trustee of the trust property for the benefit of the said idol. f) In the third week of December, 1992 the tenants received a communication from the defendant Nos. 1 and 2 wherefrom they came to learn for the first time that the trust property was sold out by the defendant No. 2 to the defendant No. 1 absolutely against valuable consideration on 16th December, 1992. g) As Laxmi Narayan Jew was the family idol worshiped with profound respect by the plaintiff and the income arising out of the trust property was for the benefit of the idol, the said property could not be lawfully transferred by the defendant No. 2 to anyone and as such, the transfer was void. The defendant No. 1, therefore, acquired no right, title and interest in the trust property. ;