EBRAHIM PEER MOHAMED Vs. KISSEN GOPAL BAGREE

JUDGEMENT

(1.) This is a difficult matter, both, on account of the state of our law on the subject of trusts, and on account of the very peculiar facts. I would, therefore, have preferred to give a written judgment. I propose to give judgment now because I anticipate that in this case the parties having spent so much on a point of principle, will probably desire to obtain the decision of a Higher Court.

(2.) A. Facts.-I will deal first with the facts. The history of the matter may be conveniently divided into stages. The first stage is represented by the document itself, the deed of 21st August 1929. That is the first and most important fact in the case. I shall have to deal with the nature and provision of the deed in considerable detail. I will merely state now that it purports to be made-between Ratilal, a trader in financial difficulties, seven persons named as trustees of whom the majority were creditors, and of whom the defendant Kissen Gopal Bagree is one. The others or their representatives are also parties to this suit. The third party to the deed is or are the creditors who have subscribed their names in the schedule. Speaking generally the deed provides for the deferred payment of Ratilal's debts in full, without interest. The payments are to be made out of the property of Ratilal which, by the deed, he agrees to convey and assign to the trustees. That is the gist of it. The next fact or set of facts which I would isolate is the manner in which, or circumstances under which, the deed came to be executed. I will give my view now on the evidence without deciding for a moment how far such evidence is relevant or can affect the provisions of the deed. There is on behalf of the plaintiff the evidence of Hassan Ali Khairaz, the General Manager of the plaintiff firm, who was not present in Calcutta at the time of execution of the deed, but who gave evidence as to the dues of the plaintiff firm, viz., a sum of Rs. 10,000 and Rs. 4,000, and of the instructions given by him to his Manager in Calcutta, one Musajee Ismail. Mr. Hassan Ali's evidence, I have no hesitation in accepting. He gave evidence in English, as I think frankly and intelligently.

(3.) On behalf of the plaintiff there is the evidence of Durga Sankar, an employee of Munnalal Sobhachand, a partner of which firm was also a trustee: vide Q. 8 and following. On the defendants side there is the evidence of one Bungsilal Bhuiya, an employee of Jeevanram Gungaram: vide Q. 72-74 whose evidence I disbelieve in its entirety. There is also the evidence of Kissen Gopal Bagree himself, vide Q. 27 and 288, and Mr. A.K. Dutt, the solicitor (particularly Q. 4, 177 and 190). With regard to Kissen Gopal I may as well state at once my view of the witness. He was a very poor witness, so poor indeed that one has to make allowances for him. I am satisfied that he is not in normal health. He is a particularly emotional individual, incapable of restraining a flow of testimony, which is therefore most; difficult to estimate at its true value. His evidence on this point is that it was considered that the deed in question was of no effect (Q. 288: "I thought I would come into possession of the property and I would then become the pucca trustee)." This should be compared with Mr. A.K. Dutt's evidence: Q. 4, 177 and following: Our idea was that this document was meant to ascertain the views of the creditors, and if the creditors agreed, that there would be formal trust deed.