SRIKISSEN KHANNA Vs. TARACHAND GHANASHYAMDAS

JUDGEMENT

(1.) This is a suit by four plaintiffs, who claim to be the present trustees of a deed of trust executed by a widowed lady named Gangadai on 22 December, 1897. The first defendants are a firm of merchants carrying on business at 18 Mullick Street, Calcutta, and they are also the tenants of 10 Rupchand Roy Street and 160 Harrison Road, Calcutta, in virtue of a lease in their favour executed by defendant 2, Amarnath Khanna, on 8 February 1910. Defendant 2 was at the time that the lease was granted by him the trustee under the deed of December 1897. He continued to occupy that position until 30 September 1931, when purporting to exercise a power of appointment in that behalf contained in the deed he executed an instrument appointing the plaintiffs, who are his sons, trustees in his place and stead. The prior history of the property in suit is as follows : It was purchased by Gangadai as long ago as 1851. It is in dispute whether the property was purchased by her from her own funds, or whether she purchased it benami on behalf of her husband Sanker Lal who died in the following year. If the former was the true position she had complete power of disposal over it, but if the conveyance to her was on Sanker Lal's behalf, on his death she only obtained a Hindu widow's interest in the property.

(2.) On 6 January 1874 she executed a deed of trust. The provisions of that deed are of very little importance but it dealt with the property on the footing that she had an absolute interest. This alleged absolute interest of hers was challenged by her deceased husband's nephew Mannulal in a suit which he instituted on 21 June 1889. A consent decree was made in that suit on 6 August 1892 whereby it was declared that the property was the absolute property of the lady and that Mannulal relinquished all claims thereto for a consideration of Rs. 20,000. In pursuance of this decree a deed of release was executed on 24 September of the same year, Mannulal being the party of the first part, Shamlal being the party of the second part, and Gangadai being the party of the third part. The operative part of the deed is as follows: Now this indenture witnesseth that in persuance of the said agreement and in consideration of the premises the said Mannulal and Shamlal do and each of them doth hereby acquit release and discharge the said Gangadai and her property estate and effects of and from all actions claims and demands whatsoever for or in respect or on account of the moveable and immovable estate of the said Sanker Lal.

(3.) The deed of trust with which this suit is concerned, that is to say, the deed of 22nd December 1897 admittedly extinguished whatever rights were created by the deed of 1874. By it the property in suit was conveyed to the defendant Amarnath Khanna by Gangadai and the trustees of the former deed, upon trust to hold the same unto and to the use of the said trustees in fee simple upon trust that the said trustee shall out of the rents, issues and profits thereof pay for the rates, repairs, taxes, revenues and other outgoings respecting or concerning the same or any part thereof, and subject thereto pay to the said Gangadai otherwise called Ganga Bibi the sum of Rs. 50 per month, and pay to Baijnath Khanna, son of the said Bhimmull Khanna, and his son and son's son and so on the sum of Bs. 100 per month, and generally upon trust to maintain and support the members of the family, guests and retainers of the said Gangadai in a style suitable to their rank and condition in life and also to do and perform in life and also to do and perform all sradh and other ceremonies of the members of the family of the said Gangadai in such a manner as the said trustees shall think fit.