KAMLESHSINGH HARNAMSINGH CHOWHAN Vs. GANGASINGH MOTISINGH CHOWHAN

JUDGEMENT

(1.) BY consent of parties this suit itself is taken up for final disposal. It was agreed between the parties that no oral evidence is necessary to be led by either of the parties for deciding the suit. It was also agreed between the parties that for deciding this suit only document that needs to be considered by the court is the deed dated 29-3-1949. Parties are also agreed that though in the suit various reliefs are claimed, only relief that the plaintiff is now pressing is the appointment of the defendants nos. 2 and 3 made by the original defendant no. 1 gangasingh as a person on whom the property devolve in terms of the above referred deed should be cancelled.

(2.) THE facts that are necessary and relevant are, admittedly the suit property is a building called "harganga mahal" situated at dadar, mumbai. That property was admittedly owned by one parvatibai. Parvatibai had one son by name motisingh. Motisingh had two sons namely harnamsingh and gangasingh. Gangasingh was the original defendant no. 1 defendants nos. 2 and 3 are sons of gangasingh and the plaintiff is the adopted son of harnamsingh. The above referred deed executed by parvatibai provided that the she settled this property in trust for the benefit of her grandsons and greatgrandsons and her son motisingh and grandson gangasingh will act as trustees. There were provisions made for distribution of the income from the property amongst harnamsingh, gangasingh and great grandsons. For the purpose of deciding this suit the only, relevant provision is the provision contained in clause (5) (f) of the deed. It reads as under : 5 (f) on the death of the survivor of them the said kunwar harnamsingh motisingh and the said kunwar gangasingh motisingh which point of time is herein referred to as the date of distribution, the trustees shall hold the trust premises and the income thereof and the cash or securities, if any, then standing to the credit of the repair fund, in trust, for such one or more sons or grandsons of the said kunwar harnamsingh and kunwar gangasingh in such shares, at such time or times for such interest or interests and in all respects whatsoever in such manner as the said kunwar gangasingh shall by deed with or without power of revocation and new appointment or by will or codicil or other testamentary writing without transgressing the rule against perpetuities or any other rule of law appoint and in default of any and subject to any and such appointment in trust for all the sons of the said kunwar harnamsingh and kunwar gangasingh in equal shares but so nevertheless that if any son of the said kunwar harnamsingh or kunwar gangasingh shall have died before the date of distributi on leaving son or sons him surviving and existing at the date of distribution then the last mentioned son or sons shall take and if more than one, equally between them the share which his or their deceased father would have taken in the trust premises and the income thereof and in the cash or securities representing the repair fund had he been alive at the date of distribution. Admitted position is that motisingh died on 21-7-1965. Harnamsingh died on 10-11-1984 and therefore in terms of the above quoted paragraph of the deed it was only gangasingh who had power to appoint persons from amongst grandsons and great grandsons of parvatibai on whom the property shall devolve on the death of the said gangasingh. It is also an admitted position that the deed was executed by gangasingh on 28-2-1992 nominating the defendants nos. 2, 3 and 4 who are his sons on whom the property shall devolve. It is further an admitted position that gangasingh expired on 4-7-2003 and two days before his death he made a codicil which reiterated what is stated in the deed dated 28-2-1992. Therefore, in the present suit what is basically challenged is exclusion by gangasingh of the plaintiff.

(3.) I have heard the learned counsel for both sides and from the submissions made before me, in my opinion, following issues arise for consideration : (i) whether the appointment of gangasingh made by the deed executed by parvatibai for nominating the person on whom the property would devolve amounts to creation of trust? (ii) if yes, whether that power is to be exercised in consonance with the principle of equity and good faith? (iii) whether the power conferred by the deed on gangasingh of making appointment is a power of the testator delegated to gangasingh and therefore it is subject to only to those obligations which are imposed by law on the testator.