NARASINGH CHARAN MOHAPATRA Vs. RADHAKANTA MOHAPATRA

JUDGEMENT

(1.) THESE two appeals arise out of proceedings in a suit filed in the Court of the Subordinate Judge. Cuttack, by one Radhakanta Mohapatra, son of the appellant, Choudhury Narasingh Charan Mohapatra, for a partition of the joint family properties belonging to himself and his father. The suit was registered as O. S. No. 9 of 1945 and was ultimately compromised on 18 -1 -1946 by a deed of compromise the parties agreeing to have the partition of their properties in equal shares through the mediation of Bhadraloks and undertaking to file allotment lists in Court within one month from the date of compromise. The allotment, however, did not materialise for some reason or other and the plaintiff thereupon filed a petition praying for the appointment of a commissioner. The learned Subordinate Judge, by his order dated 23 -4 -46, overruled the objection raised on behalf of the defendant -appellant that the comprosmise decree was in the nature of a final decree and directed the preparation of a preliminary decree. It is against this order of the Subordinate Judge that the No. l16 of 1946 has been preferred.

(2.) ON 21 -5 -1946 the defendant addressed a letter to the Vice -Chancellor of the Utkal University proposing to 'place his share of whole estate' at the disposal of the University for the purpose of establishing a Sanskrit College at Jaipur where Ayurved, Jyotish, Karma Kanda, Vyakarna and Sahitya, and such other similar subjects as the University may think fit may be taught. The defendant also undertook to give Rs. 20,000/ - for the putting up of buildings and for acquiring lands for the purpose. In his letter dated 21 -5 -1946 (Ex. 2) he wanted the approval of the Syndicate for giving effect to his proposal and desired that he may be informed immediately and the sowrk may be undertaken without delay'. The Syndicate, by its resolution dated 22 -5 -46 (Ex. 7) resolved to accept 'the generous offer' made by Rai Bahadur Narsingh Charan Mohapatra for the establishment of a Sanskrit College at Jaipur in accordance with his wishes and recommend to the Senate to approve the specific purpose for which the offer was made. The Syndicate also appointed a committee to settle the details of the gift and to have a proper transfer deed executed. On 2 -7 -46 the defendant wrote a letter (Ex. 3 -A) to Mr. C. M. Acharya requesting him to have a draft deed of gift prepared. Mr. Acharya appears to have prepared a draft which was submitted to the committee appointed by the Syndicate and the Registrar of the Utkal University by his letter dated 16 -7 -1946 (Ex. 8 -A) requested the defendant to attend the meeting of the Committee that was summoned to discuss the terms of the draft gift deed. As the defendant could not be present on 26 -7 -46 which was the date fixed for the meeting, the meeting was adjourned to 14 -8 -46, to enable Choudhury Nursing Charan to put forward a new proposal suggesting the creation of a trust of his properties for the benefit of the University instead of conveying them by a deed of gift. The reason for the suggested new proposal is given in his letter dated 20 -8 -46 (Ex -4) wherein he says: 'I now find that there are certain difficulties by a deed of gift. In a deed of gift I have to deliver present possession to the University but in a partition suit between me and my son, though the preliminary decree has been passed on 18 -1 -46, the final decree has not been passed as yet, as you know the Law's delay; and I do not like to involve the University into a litigation........So I propose as follows, to the acceptance of the University authorities.........' Briefly stated the proposal made is that (1) He will create a trust and execute and register a deed of trust in respect of his immovable properties in favour of the University,; as the 'cestui que trust', shall be the soleowner and take possession of the properties. (2) During his lifetime the defendant shall pay Rs. 5000/ - annually to the University from out of the lands conveyed to the University, the first instalment being payable after the Sunia day of 1947. (3) The defendant shall pay a sum of Rs. 25,000/ - to the University in cash, Rs. 10000/ - being payable on 23 -8 -46 and the remaining Rs. 15000/ - in two instalments by the end of December 1946.

(3.) THE proceedings of the Committee of the Syndicate which met to consider the above proposals are exhibited as Ex. P and show that the discussion took place in the presence of the defendant, Narasingh Charan Mohapatra and Rai Sahib Bemdev Misra, who was taking great interest in the matter on behalf of the defendant. The Committese accepted the various suggestions made in the new proposal and resolved to recommend the same to the Syndicate provided the defendant deposited Rs. 10,000/ - by 23 -8 -1946. In pursuance of this resolution the defendant paid a sum of Rs. 10,000 on 23 -8 -1946 and a draft trust deed prepared by the defendant's lawyer was placed before the Syndicate and the terms were settled by its resolution No. 164 of 12 -9 -1946, exhibited as Ex. Q. The deed of trust was thereafter actually executed by the defendant and registered on 14 -10 -1946. Thereafter there was an exchange of letters between the defendant and the University on account of the defendant's failure to pay the balance of Rs. 15000/ - out of the promised donation of Rs. 25,000/ - and on account of his failure to hand over the deed of trust after its registration. After much unnecessary correspondence the defendant wrote a letter to the Registrar of the Utkal University on 8 -1 -47 (Ex. 3 -H) proposing some changes in the objects of the trust and suggesting that the gift of his landed properties and cash might be better utilised if an institution for imparting technical and vocational training were started. He also suggested that in lieu of the landed property which he had settled with the University he would contribute such amount in cash as may be reasonably required for starting the aforesaid technical institution. By a subsequent letter dated 10 -2 -1947 (Ex. 1 -F) addressed to the Vice Chancellor he expressed the same desire to divert the purpose of the trust to the establishment of a technical and vocational training school while protesting that he is 'not at all unwilling to establish an Ayurvedic College at Jaipur as contemplated by me'. Finally he sent a registered letter, dated 6 -5 -47 (Ex. 1) to the Vice -Chancellor intimating to him that he revoked the proposal for the establishment of the proposed College and calling upon the University to refund the sum of Rs. 10,000/ - deposited by him on 23 -8 -46 'for utilizing the same for other educational purposes'. A few months later, by another registered letter Ex. J dated 5 -9 -47 the defendant made a new proposal to the effect that in lieu of immovable property he would pay Rs. 50,000 to establish an Ayurvedic College in 1948. The Syndicate by its proceedings dated 1 -10 -47 decided to take up the matter to Court and to enforce the terms of the trust deed that had already been executed by the defendant. On 15 -10 -1947 the University put in a petition under Order 22, 10, Civil C. to be substituted in place of the defendant in O. S. No. 9/1945 and this petition having been dismissed by the Additional Subordinate Judge, by his order dated 31 -8 -48, Mis. A. No. 76 of 1948 has been filed by the Utkal University challenging the correctness of the order of the Subordinate Judge. The University had also filed a similar petition in F. A. No. 16 of 1946 much to the same effect. These two appeals were heard together and lengthy arguments were addressed to us by Mr. S. K. De appearing for the defendantappellant, Narasingh Charan and Mr. M. S. Rao appearing for the Utkal University. At the conclusion of the arguments we intimated to the parties that the petition of the Utkal University would be allowed and that the appellant should be described as defendant 2, Narsirtgh Charan, Trustee for the Utkal University and that the University should be added as defendant 3 in the suit. We now proceed to give the reasons for our decision.