NILIMA GHOSH Vs. PRAKRITI BHUSAN MITTER

JUDGEMENT

(1.) This is a revisional application arising out of a proceeding under Section 90 of the Code of Civil Procedure which was registered as Title Suit No. 146 of 1980 of the Second Court of the learned Subordinate Judge, Alipore and is directed against the order dated February 17, 1981 passed by the learned Subordinate Judge disposing of the said proceeding.

(2.) Smt. Nilima Ghosh and her daughter-in-law Smt. Ira Ghosh are the petitioners before us in this revisional application. By a deed of trust dated Aug. 31, 1967 Smt. Nilima Ghosh settled premises No. 6, panditiya Terrace. Calcutta in trust making herself the sole trustee. Under the said trust the settlor retained unto herself a life interest in the said property with a further provision that on her death the property would vest absolutely in her daughter-in-law, Ira Ghosh or her heirs and legal representatives as the case may be. The trust contained no express provision authorising the trustee to sell the property of any contingency.

(3.) According to the settlor Smt. Nilima Ghosh, it being inconvenient for her to reside any further in the said premise, and it being uneconomic to hold the property any further by letting it out to tenants, she entered into an agreement for sale of the property with the opposite party, Sri Prakriti Bhusan Mitter on December 14, 1979. In order to effect the sale both the beneficiaries, namely the settlor herself and her daughter-in-law by an instrument dated August 19. 1980 agreed to the proposed sale of the property. Since, however, the opposite party raised a dispute as to whether in the absence of any express authority the trustee can effect sale of the property, the two petitioners and the opposite party by an agreement dated Aug. 21, 1980 agreed to refer the dispute to the court for its opinion on the point as to whether in the facts and circumstances the trustee can lawfully sell the property to the opposite party. Thus, the parties initiated the aforesaid proceeding under Section 90 of the Code as a special case which was heard and disposed of as a suit in terms of the rules of Order 36 of the Code. By the order impugned the learned Judge however refused to give his opinion on the disputed question so raised or answer the same though referred to him as a special case under Section 90. According to the learned Judge, the question referred to Mm for his opinion being a question relating to the management and administration of the trust property to be answered on interpretation of the trust deed, could be answered only by the principal civil court of the original jurisdiction of the district in view of the provisions of the Indian Trusts Act and as such his court is not the proper forum for obtaining the necessary opinion, in challenging the said order of the learned Subordinate Judge in this revisional application the petitioners have challenged the correct- ness of the view so taken by the learned Subordinate Judge.