DALIM KUMAR SAIN Vs. NANDARANI DASSI

JUDGEMENT

(1.) This appeal is directed against a judgment and decree dated Aug. 20, 1969 passed by Bijayesb Mukherjee, J. The suit was filed on July 3, 1959 by three sons and daughters of Motilal Sain who died on Nov. 4, 1955 for a declaration that the deed of mortgage dated Nov. 29, 1946 for Rs. 25,000/- and the deed of further charge dated Jan. 19, 1949 for Rs. 5,000/- executed by the defendants Sm. Nandarani Dassi in favour of India Provident Company Limited are void. The defendant No. 2 is the statutory successor of the mortgagee company. The plaintiff prayed for two ancillary reliefs -- first the aforesaid two deeds be cancelled and delivered up and second the L. I. C. be restrained by an injunction from enforcing the said two instruments of mortgages and further charge. The facts leading to the institution of the suit may be set out hereunder: January 20, 1932, Madhoo Soodan Sain created a trust on that date in respect of his undivided 4/21st share in 116, Cotton Street, Calcutta for the benefits of Motilal Nanda-rani, sons and daughters as also grand-sons and grand-daughters of Motilal and Nanda-rani and himself too. On June 15, 1936 the settlor executed a deed of rectification "purporting to remove the limitation and restriction put upon the power of the trustee to sell and mortgage the trust property irrespective of, purposes mentioned in the deed of settlement subject of course to the consent, sanction and approval of the settlor and his son Motilal Sain". On Dec. 21. 1939 Motilal Sain retired from trusteeship and appointed his wife Nandarani in his place as sole trustee. In June, 1944 and thereabout in a partition suit in this Court Suit No. 1152 of 1909 in lieu of undivided 4/21st Share of 116, Cotton Street, Nandarani was allotted Lot A delineated in the map attached to the Commissioner's Return 2. On NOV. 29, 1946 Nandarani as the sole trustee to the estate of Madhoo Soodan Sain with the consent in writing dated May 12, 1946 of her husband Motilal raised a loan of Rs. 25, 000/-on a mortgage of 4/21st share of 116, Cotton Street to India Provident Company Limited. On Tan. 19, 1949 Nandarani raised a further loan of Rs. 5,000/- from the same company on execution of a deed of further charge. On Jan. 29, 1958 L. I. C. the Statutory Successor-in-interest of India Provident Company Limited instituted a suit in this Court for enforcement of the said mortgage and further charge. The appellants in the appeal came to know for the first time about the said deed of mortgage and deed of charge and on July 3, 1959 the present suit was filed by the appellants for the reliefs mentioned above.

(2.) Before us Mr. R. L. Sinha for the appellant submitted that the trust is discretionary and the beneficiary has no interest in the trust. Their benefits in the trust will be available as and when money will be available. Therefore, the finding of the learned trial Judge that the mortgage was created to pay money under the trust can-not be sustained. Secondly, Mr. Sinha submitted that only settlor said that there was mistake in the deed; was it enough to rectify the deed? Thirdly Mr. Sinha submitted that even after the rectification the deed of trust did not empower the trustee to mortgage.

(3.) Mr. M. M. Sen appearing on behalf of the L. I. C. submitted that the rectification was made by the settlor himself only 4 years later. Nothing happened during the intermediate period. By the rectification the settlor conferred power to sell and mortgage on the trustee: