Jharkhand High Court
Dilip David Hansda vs Mr. Oddvar Holmedal on 23 July, 2026
Author: Rajesh Shankar
Bench: Rajesh Shankar
Neutral Citation No. 2026:JHHC:21767-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 79 of 1992
1. Dilip David Hansda, son of Shri Lal Hansda, resident of Village -
Narayanpur, PO- Balia Danga, PS- Maheshpur, District - Pakur
(Jharkhand)
2. Shree Pravir Kumar Soren, son of Jadu Soren, resident of Village -
2240/BB7, Delatoli, P.O.- Bariatu, P.S.- Sadar, District - Ranchi
(Jharkhand)
3. Bablu Kumar Murmu, son of Late Paul Murmu, resident of Village -
Bandarjori, P.O. & P.S. Dumka, District - Dumka (Jharkhand).
...... Plaintiffs-Respondents-Appellants
Versus
1. Mr. Oddvar Holmedal, S/o Alf Holmedal, Koroyo Mission, P.O.
Koroyo Madhuchachi, via - Gunhiajari, P.S.- Dumka Muffasil,
District - Dumka.
2. Rt. Rev. Nityanando Borgawary, S/o. Rev. Romedo Borgawary,
Gaurang Mission at Hattugoan, P.O.- P.S. and District - Kokarajhar
(Assam) at present at Badrarjori Mission in Dumka town, District -
Dumka.
... Defendants/Appellants/Respondents
WITH
L.P.A. No. 80 of 1992
1. Shree Pravir Kumar Soren, son of Jadu Soren, resident of Village -
2240/BB7, Delatoli, P.O.- Bariatu, P.S.- Sadarr, District - Ranchi
(Jharkhand)
2. Rameshwar Hembrom, S/O Khade Hembrom, a Christian Santhal,
resident of village - Kukurtopa, P.S. Jama, District - Dumka.
3. Dilip David Hansda, son of Shri Lal Hansda, resident of Village -
Narayanpur, PO- Balia Danga, PS- Maheshpur, District - Pakur
(Jharkhand)
4. Bablu Kumar Murmu, son of Late Paul Murmu, resident of Village -
Bandarjori, P.O. & P.S. Dumka, District - Dumka (Jharkhand).
5. Nathaniel Murmu, S/o. Late Churmu Murmu, a Christian Santhal by
profession a Lawyer at Dumka Court, Dumk,a District - Dumka.
6. Bishwanath Tudu, S/o Late Rambhai Tudu alias Ramai Tudu, a
Christian Santhal, by profession Service holder, being head clerk at
Page 1 of 57
Neutral Citation No. 2026:JHHC:21767-DB
Sahibganj Welfare Office, P.S. Sahibganj, District - Dumka (Bihar)
(now Jharkhand).
7. Gopin Tudu alias Gupen Soren, S/o Late Suna Soren, a Christian
Santhal, resident of Mohal Pahari Mission, P.S. Shhekaipara, District
- Dumka.
... Defendants-Appellants-Appellants
Versus
1. Trust Association of the N.E.L.C. incorporated under the Companies
Act, 1956 (1/56) having its registered office at Santhal Mission
House, Dumka, P.S. Dumka Town, Sub-Division - Dumka, District -
Dumka.
Plaintiff/Respondent/1st Party Respondent
2. Mr. Oddvar Holemdal, S/o. Alf Holmedal, Koroya Mission, P.O.-
Koroyo Madhuchachi, Via- Gunhiajari, P.S.- Dumka Muffasil,
District - Dumka.
3. Rt. Rev. Nityanando Borgawary, S/o. Rev. Romedo Borgawary,
Gaurang Mission at Hattugoan, P.O.- P.S. and District - Kokarajhar
(Assam) at present at Badrarjori Mission in Dumka town, District -
Dumka.
... Plaintiffs/Respondents/2nd Party Respondents
---------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SHANKAR
---------
For the Appellants: Mr Rajeeva Sharma, Sr. Advocate
Mr Om Prakash, Advocate
Mr Ritesh Kumar, Advocate
For the Respondents: Mr Anil Kumar, Senior Advocate
Mr Rahul Kumar, Advocate
Ms Chandana Kumari, Advocate
For the Interveners: Mr Sudhir Kumar Sharma, Advocate
---------
Reserved on: 14.07.2026 Pronounced on: 23/07/2026
Per M. S. Sonak, C.J.
1. Heard Mr Rajeeva Sharma, learned Senior Advocate, who appears
with Mr Om Prakash and Mr Ritesh Kumar for the appellants in
both appeals, and Mr Anil Kumar, learned Senior Advocate, who
appears with Mr Rahul Kumar and Ms Chandana Kumari on behalf
Page 2 of 57
Neutral Citation No. 2026:JHHC:21767-DB
of the respondents in both appeals. Mr Sudhir Kumar Sinha
appeared and was heard on questions of law after I.A. No. 11821 of
2024 in L.P.A. No. 80 of 1992 was dismissed.
2. L.P.A. No. 79 of 1992 challenges the learned Single Judge’s
common judgment, decree and order dated 30.06.1992 in First
Appeal No. 564 of 1985 by which the learned Single Judge set
aside the judgment and decree dated 28.06.1985 passed by this
District Judge, Dumka (Trial Court) in Title Suit No. 05 of 1971
instituted by the appellants herein. Trial Court had decreed Title
Suit No. 05 of 1971 in favour of the appellants herein (original
plaintiffs).
3. L.P.A. No. 80 of 1992 challenges the learned Single Judge’s
common judgment, decree and order dated 30.06.1992 in First
Appeal No. 197 of 1986 affirming the judgment and decree dated
05.02.1986 passed by the Additional District Judge, Dumka (Trial
Court) in Title Suit No. 11 of 1971 instituted by respondents herein
who were plaintiffs in Title Suit No. 11 of 1971. The Trial Court
had decreed Title Suit No. 11 of 1971 in favour of the respondents
herein, who were the plaintiffs in Title Suit No. 11 of 1971.
4. The records show that First Appeal Nos. 56 of 1985 and 197 of
1996 were disposed of by the learned Single Judge by a common
judgment, decree and order dated 30.06.1992. Therefore, although
two separate LPAs, i.e. L.P.A. No. 79 of 1992 and L.P.A. No. 80 of
1992 have been filed, the learned counsel for the parties agree that
Page 3 of 57
Neutral Citation No. 2026:JHHC:21767-DB
both these appeals could be disposed of by a common judgment and
order.
GENESIS OF THE DISPUTE
5. The dispute in the two suits, i.e., Title Suit No. 05 of 1971 and Title
Suit No. 11 of 1971, from which these appeals arise, relates to the
year 1880, when Rev. Hans Peter Doerresen and Rev. Laurentius
Olaves Skrefsrud, engaged in Evangelical Protestant Mission Work
amongst the Native Santals, founded a missionary society, earlier
called ‘Indian Home Mission to the Santals’, now known as ‘Santal
Mission of Northern Churches’ (SMNC), ‘for the education and
civilisation of the local inhabitants’. They acquired movable and
immovable properties for the purposes of the said mission and
created a Trust by executing a Trust Deed dated 21st of April 1880
to secure the properties they had acquired and might acquire in the
future.
6. The Trustees referred to in the Trust Deed dated 21st of April 1880
included not only Rev. Hans Peter Doerresen and Rev. Laurentius
Olaves Skrefsrud, but also Mr Thomas Taylor Allen and Mr Robert
Allen, Ex-trustees. They conveyed and assigned all the trust
properties to be held in such manner as directed by them, their
survivors, or persons appointed or nominated by them. To achieve
the mission’s objective, the Trustees were to hold the properties for
the Christian Santal Churches established in the Santal Parganas by
the said Mission. After the death and/or retirement of the original
Page 4 of 57
Neutral Citation No. 2026:JHHC:21767-DB
Trustees, successor Trustees were appointed under deed polls to
whom the trust properties were assigned, conveyed and transferred.
7. Title Suit No. 01 of 1914 was filed before the District Judge,
Dumka for settling a scheme for the better management of the trust
properties. The suit was disposed of in terms of the scheme agreed
to by the parties, which was later incorporated in a Supplementary
Trust Deed dated 8th of December 1920.
8. The Indian Home Mission to Santals, later SMNC, established
some Christian Santal Churches in the Santal Parganas between
1950 and 1959. These Churches were known as Evangelical
Lutheran Churches. Ultimately, they evolved into the “Trust
Association of Northern Evangelical Lutheran Church” (NELC), a
self-governing and independent Church with its own constitution,
rules and regulations. After the coming into force of the Indian
Companies Act, 1956, the above-referred Trust Association of
Northern Evangelical Lutheran Church was registered as a
Company under the said Act. This Company shall be referred to as
‘NELC Pvt Ltd’.
9. On 10th of February 1968, the then-existing trustees of SMNC
executed an instrument of transfer from one body of trustees to
another under the provisions of Article 62(e) of the Indian Stamp
Act. At that time, Rev. Gunnar Fossland, Rev. H. N. Riber and Rev.
Jens Berner Alson were the trustees of SMNC. Under this
Instrument of Transfer dated 10th of February 1968, NELC Pvt Ltd
Page 5 of 57
Neutral Citation No. 2026:JHHC:21767-DB
was introduced as a new trustee. There is considerable debate
about the scope and import of the Instrument of Transfer dated 10th
of February 1968.
10. Jacob Hembrom, Raghunath Kisku, Paraganait Bhim Murmu,
Emanual Murmu, and Chunnu Murmu (appellants herein or their
predecessors), claiming to be the beneficiaries of the 1880 Santal
Mission of Northern Church trust (SMNC), instituted Title Suit No.
05 of 1971 under section 92 of the CPC in the Court of the District
Judge at Dumka. The suit was instituted after obtaining the
necessary consent of the Advocate General.
11. In Title Suit No. 05 of 1971, the above-mentioned persons
(plaintiffs) prayed for the following reliefs: –
(i) A decree be passed, settling a scheme for the proper
management of the Trust generally known as the Santhal
Mission of the Northern Churches, and a Receiver be
appointed pendent lite and management of the said Trust
be taken out of the hands of the present Trustees
(ii) a decree be passed declaring that the transfer dated
10.2.68 by defendants nos.1 to 3 in favour defendant nos.
4 to 13 is inoperative, invalid, and illegal ab initio and
the plaintiffs are not bound by the same.
(iii) (b) a decree be passed that the properties cover by the
trust dated 21.4.1980 and the deed dated 17.4.1909
incorporated in the decree dated 21.4.1914 in Title Suit
No. 01 of 1914 and later incorporated in the deed dated
8.12.1920 and such other properties acquired for and on
Page 6 of 57
Neutral Citation No. 2026:JHHC:21767-DB
behalf of the trust, cannot be sold,, mortgaged or
hypothecated and or transferred to any other persons in
violation of the terms of the deed of agreement as
aforesaid, and the defendants be permanently restrained
from interfering with the rights and claims of the plaintiffs
and the other beneficiaries belonging to the Santal
Mission of the Northern Churches by an order of
permanent injunction.
(iv) (c) The trustees being guilty of misconduct be removed.
(v) A decree for costs of the suit.
(vi) A decree for such other relief or reliefs to which the
plaintiffs be entitled.
12. In Title Suit No. 05 of 1971, the plaintiffs impleaded 11 defendants
described as “All Directors of the Trust Association of Northern
Evangelical Lutheran Church”. Crucially, NELC Pvt Ltd was never
impleaded as a defendant to this suit, even though the plaint alleged
that the Instrument of Transfer dated 10th February 1968 had
unauthorisedly transferred the SMNC trust properties to NELC Pvt
Ltd, and the relief sought was to declare the said Instrument of
Transfer dated 10th February 1968 “inoperative, invalid, and illegal
ab initio and the plaintiffs are not bound by the same”.
13. Title Suit No. 11 of 1971 was instituted by NELC Pvt Ltd, Rev. H.
N. Riber, Rev. John Thoft Krogh and Miss Betzy Nordby, as
trustees of SMNC, against about 12 defendants, who were sought to
be sued in a representative capacity. Leave under Order 1 Rule 8 of
Page 7 of 57
Neutral Citation No. 2026:JHHC:21767-DB
the CPC was obtained, and necessary notices were also published in
accordance with the law.
14. In Title Suit No. 11 of 1971, NELC Pvt Ltd and the other co-
plaintiffs sought the following reliefs: –
(a) Declaration of title and confirmation of possession over
the Mission compounds, as described in Scheduled ‘A’,
A(1), A(2), A(3), A(4), A(5), A(6), A(7), A(8), A(9), A(10)
& A(11) attached to this plaint,
(b) A declaration that the defendants got no right to enter
into the Mission compounds as described in the said
schedules A, A(1), A(2), A(3), A(4), A(5), A(6), A(7),
A(8), A(9), A(10) & A(11) attached to this plaint, even
for performing religious rites and offering their prayers
within the said Compounds, except in accordance with
the constitution and the Rules and Regulations framed
by the plaintiff 1st party in this behalf, marked Annexure
‘I’ and ‘II’ to this plaint.
(c) Permanent Injunction restraining the defendants from
entering upon the Mission Compounds, as described in
the said Schedules A, A(1), A(2), A(3), A(4), A(5), A(6),
A(7), A(8), A(9), A(10) & A(11), except with the
permission of the proper Authorities and the Rule and
Regulation framed by the plaintiff 1st party.
(d) Permanent Injunction restraining the defendants from
describing themselves as different office bearers of the
Santhal Mission of the Northern Churches, the plaintiff
Page 8 of 57
Neutral Citation No. 2026:JHHC:21767-DB2nd party and from getting printed pamphlets letter-
heads and other documents describing themselves as the
office bears of the Santhal Mission of the Northern
Churches, the plaintiff 2nd party and from using the said
pamphlets, letter-heads and other documents of
distributing them amongst the Christians and the public
in general.
(e) Costs of the suit and such other relief or reliefs as may
be deemed fit and proper.
15. The Trial Judge partly decreed Title Suit No. 05 of 1971 vide
judgment and decree dated 28.06.1985 granting the plaintiffs
therein the following relief: –
“That the suit be decreed on contest in part with
proportionate costs. Pleader’s fee Rs.64/- and the
Pleader’s Clerk’s fee as usual. The conveyance deed dated
10.2.68, Ext.N, is hereby declared illegal, inoperative and
not binding upon the plaintiffs. The defendants are
permanently injuncted from disposing of any of the
properties covered by the Trust deed dated 21.4.1914
passed in Title Suit No. 1 of 1914 and such other properties
acquired for and on behalf of the Trust by sale, mortgage
or by hypothecation to any person in violation of the terms
of the aforesaid documents. The plaintiffs are held liable
for paying advalorem court fee. They are directed to pay
the same within ninety days from this day, failing which the
suit shall stand dismissed.”
Page 9 of 57
Neutral Citation No. 2026:JHHC:21767-DB
16. The Trial Court, by a separate judgment and decree dated
05.02.1986, decreed Title Suit No. 11 of 1971, granting the
plaintiffs therein (respondents herein) substantially all the reliefs
sought in that suit.
17. Against the judgment and decree dated 28.06.1985, by which Title
Suit No. 05 of 1971 was decreed, the defendants in that suit
preferred F.A. No. 564 of 1985 before the learned Single Judge of
the Patna High Court. Similarly, as against the judgment and decree
dated 05.02.1986, which decreed Title Suit No. 11 of 1971, the
defendants therein preferred F.A. No. 197 of 1986 before the
learned Single Judge of the Patna High Court.
18. Both these Appeals were preferred before the Learned Single Judge
of the Patna High Court because, until the year 2000, the State of
Jharkhand had not been founded, and the Trial Courts were subject
to the appellate and supervisory jurisdictions of the Patna High
Court.
19. The learned Single Judge of the Patna High Court, by a common
judgment, decree and order dated 30.06.1992, disposed of F.A.
Nos. 564 of 1985 and F.A. No. 197 of 1986. F.A. No. 564 of 1985
was allowed, and the judgment and decree dated 28.06.1985 in
Title Suit No. 05 of 1971 were set aside, thereby restoring the
Instrument of Transfer dated 10.02.1968. By the same judgment,
decree and order, F.A. No. 197 of 1986 was dismissed, thereby
Page 10 of 57
Neutral Citation No. 2026:JHHC:21767-DB
affirming the judgment and decree dated 5th February 1986, by
which Title Suit No. 11 of 1971 had been decreed.
20. The appellants, aggrieved by the learned Single Judge’s common
judgment, order, and decree, filed Letters Patent Appeals (LPAs)
before the Division Bench of the Patna High Court. However,
following the formation of the State of Jharkhand on 15.11.2000,
these LPAs were transferred to the Division Bench of the High
Court of Jharkhand and numbered as LPA No. 79/1992, which
concerns Title Suit No. 05 of 1971 and F.A. No. 564 of 1985, and
LPA No. 80/1992, which concerns Title Suit No. 11 of 1971 and
F.A. No. 197 of 1986.
21. The record shows that these Appeals were argued before several
Benches on several occasions. However, the arguments remained
inconclusive for one reason or another. In our drive to address old
cases, we did grant the learned counsel for the parties’
accommodation to commence arguments on some occasions but
clarified that we would not grant any long adjournments. The
matters were ultimately argued on 07.07.2026, 08.07.2026,
13.07.2026 and 14.07.2026 and reserved for orders.
APPELLANTS’ CONTENTIONS
22. Mr Rajeeva Sharma, learned Senior Advocate for the appellants in
the context of L.P.A. No. 79 of 1992 contended as follows: –
(a) That the finding that Title Suit No. 5 of 1971 was not
maintainable under Section 92 of the CPC or that no relief of
Page 11 of 57
Neutral Citation No. 2026:JHHC:21767-DBdeclaration of nullity of the Instrument of Transfer dated
10.02.1968 could be granted therein, was erroneous and
perverse. He submitted that the necessary consent was
obtained from the Advocate General before instituting this
suit. As beneficiaries of the SMNC trust, the plaintiffs sought
the framing of a scheme to manage the affairs of the Trust and
the removal of the existing trustees, who were mismanaging
the Trust and its properties. One of the prime instances of
mismanagement was the execution of the Instrument of
Transfer dated 10.02.1968, by which the existing trustees
unauthorisedly and fraudulently transferred the trust properties
to NELC Pvt Ltd. He submitted that all the predicates of
Section 92 of the CPC were duly fulfilled and, therefore, Title
Suit No. 05 of 1971 was maintainable and was correctly
decreed by the Trial Court.
(b) The First Appellate Court ignored the voluminous evidence on
record regarding the misconduct of the existing trustees of
SMNC and the unauthorised and fraudulent transfer of the
trust properties to NELC Pvt Ltd. He submitted that the fraud
and collusion of the existing trustees of the SMNC Trust were
evident because, along with NELC Pvt Ltd, they joined as co-
plaintiffs in Title Suit No. 11 of 1971, claiming a declaration
that it had become the owner of the SMNC trust properties,
relying upon the fraudulent Instrument of Transfer dated
Page 12 of 57
Neutral Citation No. 2026:JHHC:21767-DB
10.02.1968 and a permanent injunction to restrain beneficiaries
like the appellants from interfering with the SMNC trust
properties. He contended that such conduct, or rather
misconduct, was sufficient to conclude mismanagement of the
Trust and the Trust properties. Once this was established, no
fault could have been found with the Trial Court’s judgment
and decree dated 28.06.1985 setting aside the fraudulent
Instrument of Transfer dated 10.02.1968.
(c) The collusive and fraudulent Instrument of Transfer dated
10.02.1968 was executed by only two of the three existing
trustees of the SMNC Trust. The 3rd Trustee, in breach of
Sections 47 and 48 of the Indian Trusts Act, purported to
delegate his powers and duties to a Power of Attorney, who
ultimately executed the fraudulent Instrument of Transfer
dated 10.02.1968. He therefore submitted that the Instrument
of Transfer, being in breach of Sections 47 and 48 of the
Indian Trusts Act, was void and was correctly set aside by the
Trial Court.
(d) The fraudulent Instrument of Transfer dated 10.02.1968 was
void because it was contrary to the purposes of the SMNC
Trust, founded in 1880. No such transfer was competent until
the object of the SMNC Trust, namely the education and
civilisation of the local inhabitants, was fully achieved. There
is no record of the three existing trustees exercising their
Page 13 of 57
Neutral Citation No. 2026:JHHC:21767-DB
subjective satisfaction in the manner known to law. No
document, such as a resolution of the Trust signed by all three
trustees, was ever produced on record. He submitted that the
existence of such a resolution was a sine qua non for the
execution of the Instrument of Transfer dated 10.02.1968.
(e) There was no pleading in the suit that the fraudulent
Instrument of Transfer dated 10.02.1968 was a transfer from
one body of trustees to another, and therefore it was not the
same as a transfer or conveyance of the Trust properties by one
set of trustees to NELC Pvt Ltd. He submitted that there were
also no pleadings in Title Suit No. 05 of 1971 to the effect that
NELC Pvt Ltd had now become one of the Trustees of SMNC
Trust. In the absence of such pleadings, the First Appellate
Court was not justified in making out an entirely new case for
the defendants in Title Suit No. 05 of 1971.
(f) He submitted that any evidence not supported by pleadings
cannot even be considered by the courts of law. He submitted
that it is well settled that there cannot be any variance between
pleadings and proof. Any finding that is not supported by the
pleadings warrants interference, as it may have been reached in
breach of the principles of natural justice. He submitted that
the impugned judgment and order dated 30.06.1992 deserve to
be set aside on this ground as well.
Page 14 of 57
Neutral Citation No. 2026:JHHC:21767-DB
(g) The non-joinder of NELC Pvt Ltd as a defendant in Title Suit
No. 05 of 1971 was not fatal to its maintainability or to the
grant of any relief, including the relief to set aside the
fraudulent Instrument of Transfer dated 10.02.1968. He
submitted that the fraudulent instrument created no rights or
interest in favour of NELC Pvt Ltd. In any event, since Title
Suit Nos. 05 of 1971 and 11 of 1971 were being tried together,
and NELC Pvt Ltd was one of the plaintiffs in Title Suit No.
11 of 1971, it could claim no prejudice from its non-joinder in
Title Suit No. 05 of 1971. Accordingly, impleadment of NELC
Pvt Ltd in Title Suit No. 05 of 1971 was not necessary, more
so since all the directors of NELC Pvt Ltd had been impleaded
as defendants in Title Suit No. 05 of 1971.
23. In the context of L.P.A. No. 80 of 1992, Mr Rajeeva Sharma made
the following submissions: –
(a) He submitted that the learned Single Judge, having held that
the Instrument of Transfer dated 10.02.1968 did not transfer
any of the trust properties to NELC Pvt Ltd, could not, at the
same time, have decreed Title Suit No. 11 of 1971, in which
NELC Pvt Ltd had sought a declaration of title and
ownership in respect of the trust properties, or have issued
any permanent injunction at the behest of NELC to
permanently injunct the appellants, who are the beneficiaries
of the SMNC Trust, from even entering upon the trust
Page 15 of 57
Neutral Citation No. 2026:JHHC:21767-DBproperties, which include churches and other places of
worship;
(b) The learned Single Judge failed to appreciate that the Trial
Court, in deciding Title Suit No. 11 of 1971, could never
have decreed in favour of NELC Pvt Ltd, because by an
earlier judgment and decree dated 28.06.1985 in Title Suit
No. 05 of 1971, the Trial Court had set aside the transfer
deed dated 10.02.1968. He submitted that NELC’s entire
case was based on the transfer deed dated 10.02.1968. Once
that transfer deed was set aside, there was no question of the
Trial Court decreeing Title Suit No. 11 of 1971.
(c) Accordingly, Mr Sharma submitted that the decree dated
28.06.1985 in Title Suit No. 05 of 1971 deserves to be
restored and the decree dated 05.02.1986 in Title Suit No.
11 of 1971 deserves to be reversed. He submitted that the
common judgment, decree and order dated 30.06.1992
passed by the learned Single Judge deserve to be interfered
with.
24. Mr Sharma filed a synopsis and written arguments, which were
taken on record. However, we note that all the contentions he urged
have been set out hereinabove, and in addition to those contentions
or grounds, no other contentions or grounds were urged or pressed
before us, even though the appeal memos and the synopsis may
have referred to several contentions or grounds.
Page 16 of 57
Neutral Citation No. 2026:JHHC:21767-DB
25. Mr Sharma relied upon the following decisions in support of his
contentions in both the Letters Patent Appeals: –
(i) Bachhaj Nahar Versus Nilima Mandal, (2008) 17 SCC
491,
(ii) Sk. Abdul Kayum Versus Mulla Alibhai, 1962 SCC
OnLine SC 159
(iii) Princes Famita Fauzia and another Versus Syeed Ul-
Mulk Alias Nawab Saheb Chathari & Others, [1979] 1
APLJ 264,
(iv) Shree Shree Gopal Shreedhar Mahadeb Versus
Shasheebhushan Sarkar, 1932 SCC OnLine Cal 118
(v) Bonnerji Versus Sitanath Das, (1921) I.L.R. 49 Calc. 325;
L.R. 49 I.A. 46
Mr SUDHIR KUMAR SHARMA’s CONTENTIONS
26. By order dated 14.07.2026, we disallowed the intervention
application, being I.A. No. 11821 of 2024, in L.P.A. No. 80 of
1992. However, we heard Mr Sudhir Kumar Sharma on the points
of law he urged in support of L.P.A. No. 80 of 1992.
27. Mr Sudhir Kumar Sharma submitted that the provisions of the
Indian Trusts Act, 1882 apply only to private trusts and their
trustees. He further submitted that SMNC was a public trust
governed by the Trust Deed dated 21.04.1880, together with the
schemes formulated by the Court in Title Suit No. 01 of 1914. He
therefore submitted that the Trial Court and the learned Single
Judge grossly erred in applying the provisions of the Indian Trusts
Act, 1882 to these matters.
Page 17 of 57
Neutral Citation No. 2026:JHHC:21767-DB
28. Mr Sudhir Kumar Sharma submitted that Article 62(e) of the Indian
Stamp Act, 1899, contemplates the transfer of trust property
without consideration from one trustee to another trustee or from a
trustee to a beneficiary. Therefore, he submitted that the Instrument
of Transfer dated 10.02.1968 made by the Trustees of SMNC to the
Trustees of NELC Pvt Ltd was incompetent under Article 62(e) of
the Indian Stamp Act, 1899. He insisted that NELC Pvt Ltd was
also a public trust and not a private limited company under the
Indian Companies Act, 1956. Therefore, he submitted that the
Instrument of Transfer dated 10.02.1968 was void ab initio.
29. Mr Sudhir Kumar Sharma submitted that NELC Pvt Ltd, which,
according to him, was a public trust, was not a necessary party to
Title Suit No. 05 of 1971, and that the learned Single Judge erred in
dismissing Title Suit No. 05 of 1971 on the ground of non-joinder
of NELC Pvt Ltd.
30. Accordingly, Mr Rajeeva Sharma and Mr Sudhir Kumar Sharma,
though on different grounds, submitted that both LPAs must be
allowed, that the Trial Court’s judgment and decree dated
28.06.1985 in Title Suit No. 05 of 1971 be restored, and that Title
Suit No. 11 of 1971 be dismissed.
RESPONDENTS’ CONTENTIONS
31. Mr Anil Kumar, the learned Senior Advocate for the respondents in
both these appeals, defended the impugned common judgment,
decree and order dated 30.06.1992 disposing of First Appeal Nos.
Page 18 of 57
Neutral Citation No. 2026:JHHC:21767-DB
564 of 1985 and 197 of 1986 based upon the reasoning reflected
therein.
32. Mr Anil Kumar submitted that the relief to declare the Instrument
of Transfer dated 10.02.1968 as invalid and illegal ab initio was not
at all maintainable in a suit purportedly instituted under Section 92
of the CPC. He submitted that in any event, after the Trial Court
denied the relief of formulation of a scheme and removal of the
trustees, Title Suit No. 05 of 1971 ceased to be a suit under Section
92 of CPC and should have been dismissed without even going into
the issues of legality and validity of the Instrument of Transfer
dated 10.02.1968.
33. Mr Anil Kumar submitted that, in any event, if, according to the
appellants, the Instrument of Transfer dated 10.02.1968 had
transferred the SMNC Trust properties to NELC Pvt Ltd, and the
plaintiffs sought to have those properties transferred or restored to
SMNC Trust, then NELC Pvt Ltd was a necessary party to Title
Suit No. 05 of 1971. Without impleading NELC Pvt Ltd as a
defendant, Title Suit No. 05 of 1971 could not have been decreed.
The finding to this effect by the learned Single Judge is correct and
warrants no interference.
34. Mr Anil Kumar submitted that in the plaint of Title Suit No. 05 of
1971, the plaintiffs had pleaded in paragraph 25 that a cause of
action for the suit arose on 10.02.1968, when the Trust properties
were transferred to NELC Pvt Ltd contrary to the terms and
Page 19 of 57
Neutral Citation No. 2026:JHHC:21767-DB
conditions of a Trust and also on subsequent dates when various
other acts of breach of trust in respect of the said Trust, generally
known as SMNC, were and are still being committed by the
defendants.
35. Mr Anil Kumar submitted that Title Suit No. 05 of 1971 was filed
only on 04.06.1971. Accordingly, he submitted that the same was
ex facie barred by limitation. In any event, the prayer for declaring
the Instrument of Transfer dated 10.02.1968 as illegal and void was
ex facie barred by the law of limitation, since the same was not filed
within three years from the date when the alleged right to sue first
accrued. He submitted that it was the duty of the Court to have
dismissed Title Suit No. 05 of 1971 given the provisions of Section
3 of the Limitation Act, 1963.
36. Mr Anil Kumar submitted that the learned Single Judge correctly
held that the Instrument of Transfer dated 10.02.1968, when
properly constituted, was merely a document appointing new
trustees and effecting the transfer of trust properties from one Body
of Trustees to another. He submitted that this was permissible under
the law and under the 1880 SMNC’s Trust Deed. He submitted that
there was no breach of any of the provisions of the Indian Trusts
Act, 1882, including Sections 47 and 48 now invoked by the
appellants.
37. Mr Anil Kumar admitted that the Instrument of Transfer dated
10.02.1968 was not a transfer of property under the Transfer of
Page 20 of 57
Neutral Citation No. 2026:JHHC:21767-DB
Property Act, 1882, but rather an instrument appointing a new
trustee. He submitted that NELC Pvt Ltd was a company
incorporated under the Indian Companies Act, 1956 and
consequently a legal person. He submitted that there is no bar to a
legal person like a company being appointed as the trustee. No such
case was ever pleaded or even urged by the appellants-plaintiffs.
38. Mr Anil Kumar submitted that a ‘Trust’ per se is not a legal person.
Therefore, in respect of a Trust or its property, it is always the
Trustees who sue or are sued. He therefore submitted that Title Suit
No. 11 of 1971, which was instituted by the then-existing and the
new Trustees, was perfectly competent and correctly decreed by the
Trial Court, and that such decree was correctly affirmed by the
learned Single Judge in the impugned common judgment, decree
and order dated 30.06.1992.
39. Mr Anil Kumar submitted that the contentions now raised by Mr
Sudhir Kumar Sharma were never raised by the appellants either
before the Trial Court, the First Appellate Court or in the LPA. He
submitted that if Mr Sudhir Kumar Sharma’s arguments about
inapplicability of the Indian Trusts Act, 1882 are to be upheld, then
there is no question of even considering the arguments based on
Sections 47 and 48 of the said Act as were urged by Mr Rajeeva
Sharma, the learned Senior Advocate for the appellants.
40. Mr Anil Kumar submitted that the argument based on Article 62(e)
of the Stamp Act was also never raised before the Trial Court, the
Page 21 of 57
Neutral Citation No. 2026:JHHC:21767-DB
First Appellate Court and in the LPA. In any event, such argument
is entirely misconceived because it proceeds on the premise that
NELC Pvt Ltd was not a private limited company incorporated
under the Indian Companies Act, 1956, but that it was a Trust. He
submitted that such a plea runs counter to the pleading in Title Suit
No. 05 of 1971 wherein it was the categorical case of the plaintiffs
that NELC Pvt Ltd was a private limited company.
41. Mr Anil Kumar also submitted a synopsis of the arguments on
behalf of the respondents in the two appeals, covering, inter alia,
the contentions referred to hereinabove.
POINTS FOR DETERMINATION IN THESE APPEALS
42. Based on the rival contentions, the following points for
determination arise in these LPAs:
(i) Whether Title Suit No. 05 of 1971 under Section 92 of the
CPC was maintainable and properly instituted?
(ii) Whether Title Suit No. 05 of 1971 or, in any event, the
relief to declare the Instrument of Transfer dated
10.02.1968 as illegal, null and void was barred by
limitation, even though the bar of limitation had not been
set out as a defence by the defendants to the said suit?
(iii) Whether Title Suit No. 05 of 1971 warranted dismissal for
non-joinder of NELC Pvt Ltd?
(iv) Whether the First Appellate Court travelled beyond the
pleadings in the defendants’ written statement in Title
Suit No. 05/1971, and whether the finding that the
Page 22 of 57
Neutral Citation No. 2026:JHHC:21767-DB
Instrument of Transfer dated 10,02,1968 did not transfer
the Trust’s properties to NELC Pvt. Ltd, or that it was
only a transfer from one body of trustees to another, was
vitiated?
(v) Whether there was any illegality or infirmity in the
Instrument of Transfer dated 10.02.1968 warranting a
declaration as to its illegality and inoperativeness?
(vi) Was Title Suit No. 11 of 1971 not maintainable because it
was not instituted by the SMNC Trust, which was the
owner of the Trust properties in respect of which the
declaration was sought?
(vii) Whether the Trial Court was justified in decreeing Title
Suit No. 11 of 1971 after decreeing Title Suit No. 05 of
1971 and holding that the Instrument of Transfer dated
10.02.1968 was illegal, inoperative and not binding on the
plaintiffs in Title Suit No. 05/1971, who were the
defendants in Title Suit No. 11/1971??
(viii) Consequently, was the First Appellate Court justified in
dismissing First Appeal No. 197 of 1986, thereby
affirming the patently illegal decree dated 05.02.1986
passed by the Trial Court in Title Suit No. 11 of 1971?
EVALUATION OF RIVAL CONTENTIONS AND
DETERMINATION OF THE POINTS IN THESE APPEALS
43. We now proceed to determine the above-referred points, though
there is bound to be some overlap in the points for determination in
the two appeals.
Page 23 of 57
Neutral Citation No. 2026:JHHC:21767-DB
SECTION 92 CPC ISSUE
44. The first point to be determined is whether Title Suit No. 05 of
1971 was maintainable and properly instituted under Section
92 of the CPC.
45. Admittedly, the Trial Court decreed Title Suit No. 05 of 1971,
overruling the defendants’ objections that the suit did not satisfy the
conditions of Section 92 CPC.
46. The First Appellate Court, in its impugned common judgment,
order and decree dated 30.06.1992, did not clearly hold that the
suit, as instituted, was incompetent. But it held that once the two
reliefs, i.e., the formulation of a scheme to administer the SMNC
trust and the removal of the then-existing trustees, were declined
for failure to establish any breach of trust, the remaining relief to
declare the Instrument of Transfer dated 10.02.1968 as illegal, null
and void, could not have been granted in such a suit.
47. The contention now raised by Mr Anil Kumar about maintainability
of the suit under Section 92 CPC was considered and partly rejected
by the learned Single Judge in paragraphs 24 and 25 of the
impugned common judgment, decree and order dated 30.06.1992.
Paragraph 24 refers to the contentions and paragraph 25 rejects
such contentions.
48. Therefore, the contents of paragraph 25 are transcribed below for
the convenience of reference: –
Page 24 of 57
Neutral Citation No. 2026:JHHC:21767-DB
“25. It is difficult to accept the latter submission. The relevant
part of sub-section (1) of section 92 is in the following terms:-
“In the case of any alleged breach of any express or
constructive trust. ….or where the direction of the court
is deemed necessary for the administration of any such
trust….”
(emphasis added)
In view of the wording of the provision, for invoking the
jurisdiction of the court under section 92, it would be sufficient
if facts are stated alleging breach of express or constructive
trust or, in the alternative, seeking direction of the Court for the
administration of the trust. It is well known that the jurisdiction
of the Court is normally determined on the basis of the
averments in the plaint. Thus, if such an allegation or averment
is made in the plaint, it is enough to give jurisdiction to the
court. Whether failure to prove the allegation would render the
suit not maintainable was answered by a Division Bench of the
Punjab & Haryana High Court in Sohan Singh Vs. Achhar
Singh (AIR 1968 Punjab & Haryana, 463) in these words:-
“If once the Court has jurisdiction, it is not always
necessary that a breach of trust must be proved as a
condition precedent for the grant of any relief
contemplated by section 97.”
I am in respectful agreement with this view. In Mt. Ali Begam v.
Badr-ul-Islam Ali Khan (AIR 1938 Privy Council. 184), relied
upon by Mr.Asghar Hussain, it was held that once a suit under
section 92 is validly instituted, it is a representative suit subject
to all the incidents affecting suits in general and representative
suits in particular. But the question for consideration is whether
Page 25 of 57
Neutral Citation No. 2026:JHHC:21767-DB
the averments made in the plaint of T.S. No.5 of 1971 do
constitute ‘alleged breach of trust’ so as to bring the suit within
the pale of section 92.”
49. No doubt, the First Appellate Court held that the averments in the
plaint of Title Suit No. 05 of 1971, even if taken at their face value,
do not make out any case of “breach of trust”. Therefore, the First
Appellate Court suggests that, although the suit could not have been
rejected on the ground of maintainability, no case had been made
out to decree the suit by exercising jurisdiction under Section 92
CPC.
50. The First Appellate Court held that the two main reliefs, namely the
formulation of a scheme for the administration of the trust and the
removal of the existing trustees, which clearly relate to Section 92
CPC, were not granted even by the Trial Court. The appellants
herein, who were the plaintiffs in Title Suit No. 05 of 1971, failed
to file any cross-objections challenging the denial of these reliefs.
Therefore, the suit, which sought only to declare the Instrument of
Transfer dated 10.02.1968 illegal, null and void, could not have
been decreed when the appellants invoked the jurisdiction under
Section 92 of the CPC.
51. It is well settled that the foundation of a suit under Section 92 of the
CPC is a breach of trust by the trustees or the mismanagement of
the properties held in trust. However, to determine maintainability,
the allegations in the plaint must be considered. Based on those
allegations, we cannot hold that the suit was not maintainable or
Page 26 of 57
Neutral Citation No. 2026:JHHC:21767-DB
that it was not properly constituted or instituted. The procedural
formalities prescribed under Section 92 of the CPC were duly
complied with. But a finding that the suit was maintainable or
properly constituted or instituted is never sufficient to decree the
same. The veracity of the allegations needs to be ascertained before
any relief can be granted.
52. The Trial Court and the First Appellate Court have denied the
reliefs, namely the formulation of a scheme for the administration
of the trust and the removal of the existing trustees. These were the
two principal reliefs, which clearly related to a suit under Section
92 CPC. They were sought on the premise that the existing trustees
had breached the trust and mal-administered the properties held in
trust.
53. The question therefore was whether, after denying the two principal
reliefs, the Trial Court could have issued a declaration that the
Instrument of Transfer dated 10.02.1968 was illegal, null and void?
54. The Trial Court, without answering the above question, proceeded
to declare the Instrument of Transfer dated 10.02.1968 illegal and
null and void. The First Appellate Court held otherwise, as is
evident from the reasoning in the impugned judgment and order
dated 30.06.1992.
55. The First Appellate Court, after a detailed analysis of the 1880
Trust Deed, the schemes formulated by or with the leave of the
Courts, supplementary trust deeds/polls, has held that the charge of
Page 27 of 57
Neutral Citation No. 2026:JHHC:21767-DB
breach of trust or maladministration of the properties held in trust
was not established.
56. The First Appellate Court also analysed the scope of the Instrument
of Transfer dated 10.02.1968 and held that it did not constitute a
transfer of property within the meaning of the Transfer of Property
Act, 1882, but rather a transfer from one Body of Trustees to
another Body of Trustees under Article 62(e) of the Indian Stamp
Act.
57. Based on this analysis and reasoning, the First Appellate Court held
that the relief to declare the Instrument of Transfer dated
10.02.1968 illegal, inoperative and not binding on the plaintiffs
could not be granted in Title Suit No. 5/1971.
58. In Swami Parmatmanand Sarswati Vs. Ramji Tripathi, AIR
1974 SC 2141, it was observed that a suit of special nature under
section 92, which pre-supposes existence of public trust of religious
and charitable character, can proceed only on the allegation that
there was breach of such trust or that the direction of the court is
necessary for administration of the trust and the plaintiffs must pray
for one or more of the reliefs that are mentioned in the section.
59. In Swami Parmatmanand Sarswati (supra), the Hon’ble Supreme
Court explained what should be done in a case where allegation of
breach of trust is not proved in a suit under Section 92 CPC, in the
following words: –
Page 28 of 57
Neutral Citation No. 2026:JHHC:21767-DB
“It is, therefore, clear that if the allegation of breach of
trust is not substantiated or that the plaintiff had not made
out a case for any direction by the Court for proper
administration of the trust, they very foundation of a suit
under the section would fail; and, even if all the other
ingredients of a suit under section 92 are made out, if it is
clear that the plaintiffs are not suing to vindicate the right
of the public but are seeking a declaration of their
individual or personal rights of the individual or personal
rights of any other person or person in whose they are
interested, then the suit would be outside the scope of
Section 92…… A suit whose primary object or purpose is to
remedy the infringement of an individual right or to
vindicate a private right does not fall under the section.”
60. Similarly, in R.M. Narayana Chettiar and Another Vs. N.
Lakshmanan Chettiar and Others, (1991) 1 SCC 48, the Hon’ble
Supreme Court, in the context of Swami Parmatmanand Sarswati
(supra), held that to see whether the suit falls within the ambit of
Section 92 CPC, only the allegations in the plaint should be looked
into in the first instance. But, if, after the evidence is taken, it is
found that the breach of trust alleged has not been made out and
that the prayer for direction of the court is vague and is not based
on any solid foundation of fact or reason but is made only with a
view to bring the suit under the section, then such a suit must be
dismissed.
Page 29 of 57
Neutral Citation No. 2026:JHHC:21767-DB
61. In the present case, as noted earlier, the pleadings do suggest that
the plaintiffs’ foundation was alleged breach of trust by the
defendants-trustees. Based upon this foundation, the two reliefs
contemplated under Section 92 CPC were sought, namely, settling a
scheme, and removal of the existing trustees. The third relief, which
was introduced by way of amendment of the plaint, related to the
Instrument of Transfer dated 10.02.1968. This was also founded on
the alleged breach of trust by the existing trustees in allegedly
transferring the Trust properties to NELC Pvt Ltd.
62. Even the Trial Court denied the relief of settling the scheme or
removal of the existing trustees. This implies that the plaintiffs’
case of breach of trust was not accepted even by the Trial Court.
The denial of the relief of settling a scheme or removing the
trustees, based on the finding that there was no breach of trust, was
never challenged by the appellants/plaintiffs, either by filing any
cross-appeals, or cross-objections in First Appeal No. 564 of 1985.
The said finding and denial of relief of settling a scheme or
removing the trustees, therefore, attained finality qua the
plaintiffs/appellants herein.
63. In such circumstances, we fail to understand how the Trial Court
could have proceeded with Title Suit No. 05 of 1971 under Section
92 of CPC and proceeded to declare the Instrument of Transfer
dated 10.02.1968 as illegal, inoperative and not binding on the
plaintiffs. The Trial Court failed to appreciate that this was not a
Page 30 of 57
Neutral Citation No. 2026:JHHC:21767-DB
suit simplicitor for declaring only the Instrument of Transfer dated
10.02.1968 as illegal, inoperative, and not binding on the plaintiffs
for the reasons alleged in the plaint. In that sense, there is a
contradiction in the judgment and decree of the Trial Court dated
28.06.1985 in Title Suit No. 05 of 1971.
64. Thus, Title Suit No. 05/1971 was maintainable, properly constituted
and instituted. However, the relief to formulate a scheme for the
administration of the Trust or its properties, or to remove its
existing trustees, was correctly denied. Further, no case was made
out for the relief to declare the Instrument of Transfer dated
10.02.1968 illegal, inoperative and not binding upon the plaintiffs.
The first point for determination is answered accordingly.
LIMITATION ISSUE
65. The second point for determination is whether Title Suit No. 05
of 1971, or, in any event, the relief to declare the Instrument of
Transfer dated 10.02.1968 illegal, null and void, was barred by
limitation, even though the defendants to the said suit had not
pleaded limitation as a defence?
66. The Trial Court did not address the limitation issue, perhaps
because limitation was not pleaded as a defence in the defendants’
written statement in Title Suit No. 05 of 1971. The First Appellate
Court noted the limitation contention but held that, since there were
other substantial grounds for reversing the Trial Court’s judgment
and decree, the limitation issue need not be decided. Mr Anil
Page 31 of 57
Neutral Citation No. 2026:JHHC:21767-DB
Kumar has again raised the limitation issue, contending that he will
rely only on the pleadings in the plaint and the law on the subject.
67. At least prima facie, we do not think that the limitation bar was
attracted to the reliefs for the formulation of a scheme for the
administration of the trust and the removal of the existing trustees.
However, there is some problem with the relief to declare the
Instrument of Transfer dated 10.02.1968 illegal, null and void given
the pleadings in the plaint and the relevant provisions and Articles
in the Limitation Act, 1963.
68. Section 3 of the Limitation Act, 1963 provides that it shall be the
duty of the Court to dismiss a suit instituted beyond the prescribed
period of limitation, whether or not the bar of limitation has been
set up as a defence.
69. No doubt, when the limitation bar is not raised before the Trial
Court, the Appeal Courts are reluctant to consider such an issue,
particularly where it involves the adjudication of facts or mixed
questions of law and fact. But since the duty to examine the
limitation issue is cast on the Court, the Appeal Courts cannot be
precluded from considering it, particularly when it does not involve
the adjudication of facts or mixed questions of law and fact.
70. In paragraph 25 of the plaint in Title Suit No. 05/1971, the
Plaintiffs (present Appellants), have pleaded as follows:
“25. That the cause of action for this suit arose on
10.2.1968, when he Trust properties were transferred to the
Page 32 of 57
Neutral Citation No. 2026:JHHC:21767-DBTrust Association of the N.E.L.C. contrary to the terms and
conditions of the Trust and also on subsequent dates when
various other acts of breach of trust in respect of the said
trust, generally known as the Santhal Mission of the
Northern Churches, were and are still being committed by
the defendants. Part of the Trust Properties being situate in
Dumka, Benagaria, Mohulpahari, Karikadar, Koraiya,
Chandarpura, Masnia, Kaerabani, Saphadaha, Sal
Dhorompur, Majdiha, Bhalsumia, Maharo, Rajpakhar,
Basethkundi, Haripur and Hathi Bara, all in the District of
Santhal Parganas, this Court has jurisdiction to entertain
this suit.”
71. The limitation period for seeking a declaration that the Instrument
of Transfer dated 10.02.1968 is illegal, inoperative and not binding
on the plaintiffs is governed by Article 58 of the Schedule to the
Limitation Act. This article provides that the period of limitation
for obtaining any other declaration shall be three years from the
date on which the right to sue first accrues.
72. If, according to the plaintiffs (present appellants), the right to sue
regarding the Instrument of Transfer dated 10.02.1968 arose on
10.02.1968, then the suit, which was instituted on 04.06.1971, was
barred by limitation. Article 58 refers to the expression “when the
right to sue first accrues.” Therefore, the pleadings that the cause
of action also arose on subsequent dates cannot come to the aid of
the plaintiffs (present appellants).
Page 33 of 57
Neutral Citation No. 2026:JHHC:21767-DB
73. If Article 113 of the Limitation Act, which contains the residual
provisions, applies, even then, the period of limitation would be
three years, from when the right to sue accrues. At least, in the
context of reliefs, qua the Instrument of Transfer dated 10.02.1968,
there are no pleadings about the cause of action accruing on
subsequent dates. The reference to subsequent dates is clearly in the
context of allegations of breach of trust and to sustain the reliefs of
formulating a scheme to administer the trust properties and to
remove the existing trustees.
74. Again, the cause of action is stated to have arisen on 10.02.1968,
and the suit is admitted having been instituted on 04.06.1971, i.e.
beyond the prescribed three-year period from the date of accrual of
the cause of action.
75. Incidentally, we must note that in the suit as originally instituted, no
relief was sought to declare the Instrument of Transfer illegal. Such
relief was sought by an application dated 06.01.1972 to amend the
plaint. This amendment was allowed much later.
76. However, even if we were to accept Mr Rajeeva Sharma’s
contention that it relates back to the date of institution of the suit,
the relief regarding the Instrument of Transfer dated 10.02.1968
was still barred by limitation, given the pleadings in paragraph 25
of the plaint and the provisions contained in Section 3 of the
Limitation Act read with Article 58 and/or 113 of the Schedule to
the Limitation Act, 1963.
Page 34 of 57
Neutral Citation No. 2026:JHHC:21767-DB
77. Neither in the written statement nor before the Trial Court, the plea
that Title Suit No. 05 of 1971 was barred by limitation, or at least
the relief regarding the Instrument of Transfer dated 10.02.1968,
was barred by limitation, appears to have been raised. Therefore, it
was contended by Mr Rajeeva Sharma that we should not delve into
this issue of the suit being barred by limitation or the relief
regarding the Instrument of Transfer dated 10.02.1968 being barred
by limitation.
78. In this case, the Trial Court did not address the issue of limitation at
all, possibly because it was not raised. As noted earlier, the
provisions of Section 3 of the Limitation Act, 1963, do not absolve
a court from the requirement of considering the issue of limitation,
even though the same may not have been raised by way of defence
by the defendants.
79. Before the First Appellate Court, the issue of limitation was
squarely raised in First Appeal No. 564 of 1985. However, in
paragraph 28 of the impugned judgment, decree and order dated
30th of June 1992, the learned Single Judge, after noting several
points on which First Appeal No. 564 of 1985 deserved to succeed,
observed: –
“Since F.A. No.564 of 1985 arising therefrom has to
succeed on these grounds alone, it is not necessary to
examine the only remaining question, namely,
limitation.”
Page 35 of 57
Neutral Citation No. 2026:JHHC:21767-DB
80. Again, given the provisions of Section 3 of the Limitation Act, and
the law on the subject, the First Appellate Court was required to
answer all the issues, including that of limitation.
81. Upon considering the pleadings in the plaint in Title Suit No. 05 of
1971, including, in particular, the averments in paragraph 25 of the
plaint, it is apparent that Title Suit No. 05 of 1971, based upon the
statement in the plaint itself, was barred by limitation at least
insofar as the relief to declare the Instrument of Transfer dated
10.02.1968 as illegal, inoperative and not binding on the plaintiffs
to the said suit. Since that was the only relief granted by the Trial
Court in Title Suit No. 05 of 1971, the Trial Court’s decree
warranted reversal, even on the ground of bar of limitation.
82. In Draupadi Devi & Ors vs. Union of India & Ors, AIR 2004 SC
4684, the Hon’ble Supreme Court has held that the Court would be
bound to dismiss the suit if it is found that, “on the plaintiff’s own
pleading his suit is barred by limitation. When the plaintiff does not
plead clearly as to when the cause of action arose and the
defendant also did not raise the plea of limitation, if evidence is
found is that the suit is barred, the Court is bound to dismiss the
suit.”
83. Since the plea of limitation was raised for the first time before the
First Appellate Court, we have not adverted to any material, other
than the pleadings/statements in paragraph 25 of the plaint. As was
held in Draupadi Devi & Ors (supra), where on the plaintiffs’ own
Page 36 of 57
Neutral Citation No. 2026:JHHC:21767-DB
pleadings the suit is bound to be barred by limitation, the court is
bound to dismiss the suit.
84. In Kamlesh Babu & Ors Vs. Lajpat Rai Sharma & Ors, (2008)
12 SCC 577, the Hon’ble Supreme Court was concerned with the
situation where the plea of limitation was not raised before the First
Appellate Court or the High Court but was sought to be raised in
the Special Leave Proceedings under Article 136 of the
Constitution.
85. The Hon’ble Supreme Court held at paras 21, 22 and 23 that if the
plea of limitation is a mixed question of law and fact, the same
cannot be raised at the appellate stage. However, if there was no
dispute on facts, then, given the provisions in Section 3(1) of the
Limitation Act, and even Order 7 Rule 11(d) of CPC, which casts a
mandate upon the court to reject a plaint when the suit appears from
the statement in the plaint to be barred by any law, in this case by
the law of limitation, then, such a plea can be entertained.
86. The Hon’ble Supreme Court cited with approval the decision of the
Privy Council in Lachhmi Sewak Sahu Vs. Ram Sup Sahu, AIR
1944 Privy Council 24, wherein it was held that a plea of limitation
is prima facie admissible even in the court of last resort, although it
had not been taken in the lower courts. The Hon’ble Supreme Court
explained that the reasoning behind the said proposition was that
certain questions relating to the jurisdiction of a Court, including
limitation, go to the very root of the Court’s jurisdiction to entertain
Page 37 of 57
Neutral Citation No. 2026:JHHC:21767-DB
and decide a matter, as otherwise, the decision rendered without
jurisdiction would be a nullity.
87. In Rajendra Singh & Ors Vs. Santa Singh & Ors, (1973) 2 SCC
705, the Hon’ble Supreme Court held that it was the duty of the
Court, in view of Section 3 of the Limitation Act, to apply the bar
of limitation, whereon patent facts, it is applicable even though not
specifically pleaded.
88. In Manindra Land and Building Corporation Vs. Bhutnath
Banerjee and Ors, AIR 1964 SC 1336, the Hon’ble Supreme
Court reiterated that under Section 3 of the Limitation Act, it is the
duty of the Court not to proceed with the application if it is made
beyond the period of limitation prescribed.
89. A plea of limitation may be raised for the first time in a First
Appeal (Dhanji Jairam Mali Vs. The Secretary of State for
India, AIR 1921 BOM 381, or in a Second Appeal (Narsingha
Bana Goswami vs. Pralhodman Tevari, ILR 48 Cal 455, and
Siddalingaiah Vs. H.K. Kariappa, 2009 AIHC 1202 (Karn)). A
plea of limitation, though not raised in the Trial Court, can be raised
in a Second Appeal, and it is the duty of the Court to examine the
question of limitation irrespective of the fact that the same was not
raised in the suit before the Trial Court. There cannot be any waiver
of the provisions of limitation. However, when limitation is pleaded
in an appeal for the first time, all facts necessary to support the plea
Page 38 of 57
Neutral Citation No. 2026:JHHC:21767-DB
must be apparent on the record (Hem Chandra Roy Chowdhury
Vs Srimati Biraja Sundari Chowdhurani, AIR 1923 Cal 283).
90. An Appellate Court is entitled to decide a point of limitation even if
the respondent has not brought it up (Tiku Vs. Kripa, AIR 1952
Bilaspur 12). Whether limitation is raised or pleaded or not in the
Trial Court, the Appellate Court before which the plea is raised
must take notice of it, if it appears to the Court that the suit is
barred by time (Byomkesh Mukherji Vs. Madhabji Mepa Maru,
AIR 1939 Patna 421, and Karim Ismail Vs. Abdul Rahiman, 55
BOM LR 119).
91. Accordingly, the second point for determination is answered by
holding that the only relief granted by the Trial Court regarding
the Instrument of Transfer dated 10.02.1968 in Title Suit No. 05 of
1971 was barred by limitation and consequently, such relief could
not have been granted by the Trial Court.
NON-JOINDER OF NECESSARY PARTY
92. The third point for determination is whether Title Suit No. 05 of
1971 warranted dismissal for non-joinder of NELC Pvt Ltd?
93. In the plaint of Title Suit No. 05 of 1971, it was the appellants’
clear and categorical case that the Instrument of Transfer dated
10.02.1968 had illegally, fraudulently and collusively transferred to
SMNC Trust to NELC Pvt Ltd, which was a private limited
company incorporated under the Indian Companies Act, 1956.
Page 39 of 57
Neutral Citation No. 2026:JHHC:21767-DB
94. Thus, according to the appellants, the existing trustees of SMNC
Trust were the “transferors” in the Instrument of Transfer dated
10.02.1968 and NELC Pvt Ltd was the “transferee”.
95. Given the above clear and categorical pleadings, it was incumbent
on the appellants/plaintiffs in Title Suit No. 05 of 1971 to have
impleaded the transferee, i.e. NELC Pvt Ltd, as a defendant in that
suit. The declaration sought in the suit, if granted, would have
seriously affected NELC Pvt Ltd and visited civil consequences
upon it.
96. NELC Pvt Ltd was thus a necessary party, without whom Title Suit
No. 05 of 1971 could not have been decreed, and, in any event, no
relief could have been granted to declare the Instrument of Transfer
dated 10.02.1968 illegal or inoperative.
97. The appellants’ contention that, because all the directors of NELC
Pvt. Ltd. had been impleaded as defendants, there was no serious
infirmity in not impleading the company in the suit, cannot be
accepted.
98. It is well settled that the company has its own legal identity,
independent of its shareholders or directors. [See LIC v
ESCORTS, 1986 (1) SCC 264, and DHANSINGH PRABHU V.
CHANDRASHEKHAR, 2026(1) SCC On LINE 1419]. Therefore,
impleading some or even all the directors, without impleading the
company itself, cannot cure the defect of non-joinder of a necessary
party.
Page 40 of 57
Neutral Citation No. 2026:JHHC:21767-DB
99. Similarly, the contention that because Title Suit Nos. 05/171 and
11/1971 were being tried together, and because NELC Pvt. Ltd.
was one of the plaintiffs in Title Suit No. 11/1971, there was
substantial curing of the defect of non-joinder cannot be accepted.
The First Appellate Court has correctly held in paragraph 27 of the
impugned Judgment, Decree and Order that the two suits were
never consolidated or tried together. Rather, they were tried
separately throughout and disposed of by separate judgments,
decrees, and orders. The records also support this position.
100. Thus, the learned Single Judge was justified in holding that NELC
Pvt Ltd was a necessary party to Title Suit No. 05 of 1971 and, for
want of joinder of the necessary party, the suit could not have been
decreed and the Instrument of Transfer dated 10.02.1968 declared
illegal and inoperative. The third point for determination is
answered in the above terms.
DID THE FIRST APPELLATE COURT TRAVEL BEYOND THE
PLEADINGS IN ALLOWING FIRST APPEAL NO. 564/1985?
101. The fourth point for determination is whether the First
Appellate Court travelled beyond the pleadings in the
defendants’ written statement in Title Suit No. 05/1971, and
whether the finding that the Instrument of Transfer dated
10.02.1968 did not transfer the Trust’s properties to NELC Pvt.
Ltd, or that it was only a transfer from one body of trustees to
another, was vitiated.
Page 41 of 57
Neutral Citation No. 2026:JHHC:21767-DB
102. Mr Rajeeva Sharma elaborated that there were no pleadings about
the Instrument of Transfer dated 10.02.1968 not transferring or
conveying the trust properties to NELC Pvt Ltd. Therefore, the
finding in the impugned order that the Instrument of Transfer dated
10.02.1968 had recorded only a transfer from one Body of Trustees
to another or that NELC Pvt Ltd was a new trustee, admitted to the
SMNC Trust, travelled beyond the pleadings, and therefore, was
unsustainable.
103. In the plaint as well as in the written statement in Title Suit No. 05
of 1971, the issue of true & correct interpretation or rather the
scope and import of the Instrument of Transfer dated 10.02.1968
was squarely pleaded. This is from a holistic construction of the
pleadings in the suit. Therefore, no argument based on any
allegation of variance between pleadings and proof was raised by
the present appellants before the First Appellate Court. No such
clear grounds have also been raised in the memos of Letters Patent
Appeals.
104. Though Mr Rajeeva Sharma argued that there was violation of
natural justice because of the absence of pleadings, no prejudice
whatsoever has been pleaded or demonstrated by the appellants.
The appellants had full scope to and did argue on the scope and
import of the Instrument of Transfer dated 10.02.1968.
105. According to them, said instrument was nothing but a conveyance
of the SMNC Trust properties by the existing trustees to NELC Pvt
Page 42 of 57
Neutral Citation No. 2026:JHHC:21767-DB
Ltd. The Trial Court accepted this case and, therefore, referred to
the Instrument of Transfer dated 10.02.1968 as a “conveyance” and
declared the same as illegal, inoperative and not binding on the
appellants and others. The First Appellate Court, however, did not
agree that the Instrument of Transfer dated 10.02.1968 was a
conveyance but held that the same was only a transfer from one
Body of Trustees to another or the admission of a new trustee, in
addition to the existing trustees.
106. In Bachhaj Nahar v. Nilima Mandal & Ors, (2008) 17 SCC 491,
relied upon by Mr Rajeeva Sharma, the Hon’ble Supreme Court
held that no amount of evidence can be investigated upon a plea
which was never put forward in the pleadings. A Court cannot
make out a case not pleaded. Obviously, there can be no dispute
regarding this proposition. However, this is not a case of absence of
pleadings. Rather, both the appellants as well as the respondents
have squarely raised the issue about the true scope and import of
the Instrument of Transfer dated 10.02.1968. Therefore, any
decision or finding thereon cannot be said to be beyond the scope of
the pleadings.
107. In Bachhaj Nahar (supra), the Hon’ble Supreme Court has referred
to its earlier decision in Bhagwati Prasad Vs. Shri Chandramaul,
AIR 1966 SC 735, in which it was held that if a plea is not
specifically made and yet is covered by an issue by implication and
the parties knew that the said plea was involved in the trial, then the
Page 43 of 57
Neutral Citation No. 2026:JHHC:21767-DB
mere fact that the plea was not expressly taken in the pleadings
would not necessarily disentitled a party from relying upon if it is
satisfactorily proved by evidence.
108. The Hon’ble Supreme Court held that the general rule, no doubt, is
that the relief should be founded on pleadings made by the parties.
But where the substantial matter relating to the title of both parties
to the suit was touched, though indirectly, or even obscurely, in the
issue, and evidence has been led about it, then the argument that a
particular matter was not expressly taken in the pleadings would be
purely formal and technical and cannot succeed in every case.
109. The Hon’ble Supreme Court held that a case not specifically
pleaded can be considered by the court where the pleadings, in
substance though not in specific terms, contain the necessary
averments to make out a particular case, and the issues framed
generally cover the question involved, and the parties proceed on
the basis that such case was at issue and have led evidence thereon.
110. In the present case, there was no dearth of pleadings. The parties
were very much aware of each other’s case, though there may have
been no agreement on the scope and import of the Instrument of
transfer dated 10.02.1968. Therefore, this was not a case of the First
Appellate Court travelling beyond the pleadings. In any event,
considering the law laid down in Bachhas Nahar (supra), relied
upon by the Appellants, this plea cannot be upheld.
Page 44 of 57
Neutral Citation No. 2026:JHHC:21767-DB
111. Thus, the argument that the findings of the First Appellate Court in
the impugned judgment, decree and order go beyond the pleadings
cannot be accepted. The fourth point for determination is
answered accordingly.
ILLEGALITY OF THE INSTRUMENT OF TRANSFER DATED
10.02.1968.
112. The fifth point for determination is whether there was any
illegality or infirmity in the Instrument of Transfer dated
10.02.1968 warranting a declaration as to its illegality and
inoperativeness?
Conduct of existing trustees, whether Fraudulent, collusive and
Malafide?
113. The appellants contend that the conduct of the existing trustees in
joining NELC Pvt Ltd as co-plaintiffs in Title Suit No. 11 of 1971
was sufficient to conclude mala fides, fraud and collusion in the
execution of the Instrument of Transfer dated 10.02.1968.
114. The arguments about mala fides, fraud and collusion were raised by
the plaintiffs (present appellants) in the context of the reliefs for the
formulation of a scheme to administer the Trust and its properties
and for removal of the existing trustees. Admittedly, these two
reliefs were never granted even by the Trial Court in Title Suit No.
05 of 1971.
115. The denial of such reliefs was not even challenged by the appellants
by filing any cross-objections in First Appeal No. 564 of 1985.
Page 45 of 57
Neutral Citation No. 2026:JHHC:21767-DB
Therefore, there is no point in once again raising or pressing the
very same pleas in the context of the Instrument of Transfer dated
10.02.1968.
116. Even otherwise, the fact that the existing trustees joined the co-
plaintiffs in Title Suit No. 11 of 1971, by itself, cannot be regarded
as proof of mala fides, fraud or collusion. NELC Pvt Ltd and the
existing trustees explained that the Trust properties which were
vested in the existing trustees also vested in the new trustees, i.e.
NELC Pvt Ltd, by virtue of the Instrument of Transfer dated
10.02.1968. Accordingly, since the appellants and others were
interfering with such properties, they had to file a suit in a
representative capacity to restrain interference.
117. Similarly, even if it is assumed that the properties were divested
from the existing trustees and now vested in the new trustee, i.e.
NELC Pvt Ltd, there was nothing improper in the existing trustees
joining the new trustee as co-plaintiffs in Title Suit No. 11 of 1971.
From such joinder, there was no basis for inferring fraud, mala
fides or collusion.
118. At this stage, it is necessary to note that though the Trial Court had
granted a blanket permanent injunction restraining the defendants in
Title Suit No. 11 of 1971 (present appellants) from interfering with
the Trust properties, such a blanket injunction was modified by the
First Appellate Court by the impugned judgment, decree and order
Page 46 of 57
Neutral Citation No. 2026:JHHC:21767-DB
by reading it down to conform to the mandate of Article 25 of the
Constitution of India.
119. In fact, Mr Chatterjee, who had appeared for the plaintiffs in Title
Suit No. 11 of 1971, had agreed that no one can be prohibited from
entering the Church, provided the person concerned accepts the
authority of the Church, and that, if necessary, a clarification to this
effect can be made. Accordingly, the First Appellate Court issued
such a clarification in the impugned judgment, decree and order.
Transfer, whether contrary to objects and purposes of 1882 SMNC
Trust and to its subsequent modifications?
120. The Appellants’ next contention that the transfer of the SMNC
Trust properties being contrary to the purposes and objects of the
1882 SMNC Trust and to its subsequent modifications, was
considered in some detail by the First Appellate Court. Even
otherwise, no specific clause of the SMNC Trust Deed of 1882 and
its subsequent modifications was pointed out to elaborate upon this
omnibus contention.
121. Mr Rajeeva Sharma, however, argued that until the mission of 1882
SMNC Trust was completed in all respects, the existing trustees
had no power to either divest themselves of the Trust properties or
to transfer such properties to NELC Pvt Ltd.
122. The above argument rests on a misconstruction of the scope and
import of the Instrument of Transfer dated 10.02.1968. Even
otherwise, the provisions referred to by Mr Rajeeva Sharma must
Page 47 of 57
Neutral Citation No. 2026:JHHC:21767-DB
be read and construed holistically. One of the missions of the 1882
SMNC Trust was to educate, or (as the wording of the 1882 Trust
Deed states) to civilise the Santals. The suggestion that the existing
trustees must not even admit a new trustee or make provisions for
the Trust to continue to operate even after the demise of the existing
trustees cannot be accepted, nor can it be held to constitute a breach
of any terms or objects of the 1882 SMNC Trust or of its
modifications.
123. The contention that the instrument of transfer divests the SMNC
Trust properties has not been substantiated by reference to proven
facts, the law, or both. The appellants appear to have misconstrued
the instrument’s import and scope. The basic premise of breach of
trust by the trustees or maladministration of the properties held in
trust was also not established, even though the burden of proving it
lay with the appellants. Therefore, we see no good reason or
grounds to interfere with the First Appellate Court’s reasoning or
finding on this issue. As noted earlier, the First Appellate Court has
considered this issue in some detail and upon evaluating the
reasoning, we find no good ground to interfere with the same.
Transfer, whether it breaches Sections 47&48 of the Trusts Act?
124. The appellants next contended that there was a breach of Sections
47 and 48 of the Indian Trusts Act, 1882 involved in the execution
of the Instrument of Transfer because one of the existing trustees
Page 48 of 57
Neutral Citation No. 2026:JHHC:21767-DB
did not personally sign the Instrument, but his power of attorney
did.
125. Mr Rajeeva Sharma argued that two out of the three existing
trustees are the signatories to the Instrument of Transfer dated
10.02.1968. However, the third, then existing trustee, executed a
Power of Attorney and it is this Attorney who has signed or
executed the Instrument of Transfer dated 10.02.1968. He
contended that the very execution of a Power of Attorney amounts
to delegation of the functions by the trustees which was prohibited
under Sections 47 and 48 of the Indian Trusts Act, 1882.
126. Mr Rajeeva Sharma also argued that there was no evidence that the
three trustees held a meeting or passed any resolution to execute the
Instrument of Transfer dated 10.02.1968. He submitted that the
execution of the Instrument of Transfer dated 10.02.1968 without
there being any formal resolution authorising them to do so vitiates
the Instrument of Transfer dated 10.02.1968.
127. Section 47 of the Indian Trusts Act, 1882 provides that the 1882
Trust provides that a trustee cannot delegate his office or any of his
duties either to a co-trustee or a stranger, unless (a) the instrument
of transfer so provides, or (b) the delegation is in the regular course
of business, or (c) the delegation is necessary, or (d) the
beneficiary, being competent to contract, consents to delegation.
The explanation to this section provides that the appointment of an
attorney or a proxy to do an act merely ministerial, and involving
Page 49 of 57
Neutral Citation No. 2026:JHHC:21767-DB
no independent discretion, is not a delegation within the meaning of
this section.
128. Section 48 provides that a co-trustee cannot act singly. This means
that when there are more trustees than one, all must join in the
execution of the Trust, except where the instrument of trust
otherwise provides.
129. Mr Sudhir Kumar Sharma also urged that the provisions of the
Indian Trusts Act were not applicable. If this is so, then Mr Rajeeva
Sharma’s argument based on Sections 47 and 48 of the Indian
Trusts Act, 1882, would fail. Thus, there was a contradiction
between the arguments of Mr Sudhir Kumar Sharma and Mr
Rajeeva Sharma, though both were purporting to espouse the cause
of the appellants in L.P.A. No. 80 of 1992.
130. Sections 47 and 48, at least in the facts of the present case, are
required to be considered conjointly. Apart from the fact that the
true scope and import of the Instrument of Transfer dated
10.02.1968 does not amount to delegation by the existing trustees
of their office or any of their duties to a stranger, the explanation to
Section 47 clearly provides that the appointment of an attorney or
proxy to do an act merely ministerial, and involving no independent
discretion, is not a delegation within the meaning of this section.
131. Therefore, the fact that one of the trustees executed a Power of
Attorney, and that it was this Attorney that signed and executed the
Instrument of Transfer dated 10.02.1968, could not have been
Page 50 of 57
Neutral Citation No. 2026:JHHC:21767-DB
construed as a delegation for purposes of Section 47 of the Indian
Trusts Act, 1882. In this case, there are pleadings backed by
evidence that all the trustees exercised their independent discretion
and together determined that the admission of a new trustee would
be in the interest of the Trust. In such circumstances and based
upon the bare pleadings in the plaint, no breach of Section 47 can
be inferred.
132. Further, in this case, all the co-trustees have not acted singly, but
have joined in the execution of the Instrument of Transfer dated
10.02.1968. In any event, Section 48 of the Indian Trusts Act, 1882
provides that when there are more trustees than one, then all must
join in the execution of the Trust, except where the instrument of
trust otherwise provides. Mr Rajeeva Sharma did not explain how,
in the facts and circumstances of the present case, the provisions in
Section 48 of the Indian Trusts Act, 1882 were at all attracted.
133. In Sheikh Abdul Kayum and Others v. Mulla Alibhai and
Others (supra), the existing trustees delegated all their functions
and powers in favour of the new Body of Men. The Hon’ble
Supreme Court therefore held that this was nothing sort of
abdication in favour of a new Body of Men. The issue involved
before the Hon’ble Supreme Court was not whether the grant of a
Power of Attorney by one of the trustees to execute an instrument
of transfer would amount to delegation for purposes of Section 47
of the Indian Trusts Act, 1882. In fact, such an issue never arose in
Page 51 of 57
Neutral Citation No. 2026:JHHC:21767-DB
Sheikh Abdul Kayum (supra). Therefore, the said decision would
be of no assistance to the appellants.
134. In Princes Fatima Fauzia and another v. Syeed Ul-Mulk Alias
Nawab Saheb Chathari and others (supra), the Division Bench of
the Andhra Pradesh High Court was concerned with conveyance of
one of the Trust properties. The finding of fact recorded therein was
that some of the trustees, who sold the Trust properties, did not act
reasonably and in good faith, though they may have acted honestly
without any mala fides or corrupt motives. Further, there was a
finding that they did not discharge their statutory duties or perform
their functions, and that they did not exercise their powers
diligently as reasonable prudent men would have dealt with their
own property.
135. In the above case, there was only a contract for sale, but it was
never a concluded contract within the meaning of Section 2(h) of
the Contracts Act. In these facts, inter alia, by referring to Sections
47 and 48 of the Indian Trusts Act, 1882, it was held that the
unconcluded contract for sale of the trust properties was neither
valid nor proper and, therefore, the same would not bind either the
trustees or the beneficiaries. Again, the fact situation in the present
case is completely different and, therefore, this decision cannot
assist the appellants herein.
136. The facts in Bonnerji v. Sitanath Das (supra) are not comparable
to the facts in the present matter. This decision, however, holds that
Page 52 of 57
Neutral Citation No. 2026:JHHC:21767-DB
neither a trustee nor a person in a representative capacity can
delegate his authority. Consequently, a lease of trust property
would be invalid if it is granted by a person as an attorney for one
who is either a trustee or a manager of the property leased and who
did not negotiate or consider the lease or any of it until it is
executed.
137. There is no evidence that the trustee who had given a Power of
Attorney for the execution of the Instrument of Transfer dated
10.02.1968 failed to exercise his independent discretion alongside
the other two trustees. The facts show that the three existing
trustees acted together, but one of the trustees authorised his
attorney to execute only the Instrument of Transfer.
138. In Shree Shree Gopal Shreedhar Mahadeb (supra), only
Bonnerji v. Sitanath Das (supra) follows. The facts in the said
decision are also not even remotely comparable to the facts in the
present case. Therefore, even this decision cannot assist the case of
the appellants herein.
139. Therefore, in this case, the First Appellate Court, after coming into
close quarters with the reasoning of the Trial Court, was justified in
holding that there was no infirmity or illegality in the Instrument of
Transfer dated 10.02.1968 warranting a declaration as to its
illegality or inoperativeness by the appellants.
140. Similarly, after evaluating the reasoning of the Trial Court and the
First Appellate Court, we are satisfied that the First Appellate Court
Page 53 of 57
Neutral Citation No. 2026:JHHC:21767-DB
was justified in holding that there was no legal infirmity in the
Instrument of Transfer. The fifth point for determination is
answered accordingly.
Whether Title Suit No. 11 of 1971 was not maintainable because the
same was not instituted by the SMNC Trust?
141. The sixth point for determination is whether Title Suit No. 11 of
1971 was not maintainable because the same was not instituted
by the SMNC Trust, which was the owner of the Trust
properties in respect of which the declaration was sought by the
plaintiffs, i.e. the appellants herein.
142. Mr Rajeeva Sharma argued that no relief could have been granted
in Title Suit No. 11 of 1971 because SMNC Trust, the owner of the
properties forming the subject-matter of the suit, had not filed the
suit. With respect, such an argument cannot be accepted, given the
legal position that a Trust does not have a separate legal existence
of its own, making it incapable of suing or being sued.
143. Such a contention was never raised by the Appellants before the
Trial Court or the First Appellate Court. In any event, it is well
settled that a trust does not have a separate legal existence of its
own and is therefore incapable of suing or being sued.
144. Recently, in Sankar Padam Thapa v. Vijaykumar
Dineshchandra Agarwal, 2025 SCC OnLine SC 2194, the
Hon’ble Supreme Court has held that a trust does not have a
separate legal existence of its own, making it incapable of suing or
Page 54 of 57
Neutral Citation No. 2026:JHHC:21767-DB
being sued. The obligation to maintain and defend suits is placed on
the shoulders of a trustee and not the trust itself.
145. The Hon’ble Supreme Court, after considering the judgments of the
Kerala, Delhi, Madras, Gujarat, Calcutta and Karnataka High
Courts, affirmed the view taken therein that a Trust is not a ‘legal
entity’ or ‘juristic person’. A Trust is also not like a Corporation
which has a legal existence of its own. The Trust operates through
its Trustees, who are legal entities.
146. Therefore, a Trust, not being a legal person, and the Code of Civil
Procedure not providing any enabling provision for the trust to sue
or for being sued in its name, there was no merit in the contention
that the trust is to be arrayed as a co-nominee party. The arraying of
the trust in its own name is otiose or redundant. It is the trustees
who are to be impleaded to represent the Trust.
147. Mr Sudhir Kumar Sharma urged that NELC Pvt Ltd was also a trust
rather than a private limited company. This is contrary to the
records, and this line of argument was not even supported by Mr
Rajeeva Sharma, the learned counsel for the appellants in L.P.A.
No. 80 of 1992.
148. Therefore, Title Suit No. 11/1971, instituted by the trustees, was
very much competent and could not have been held as not
maintainable because the Trust itself was not one of the plaintiffs to
this suit.
Page 55 of 57
Neutral Citation No. 2026:JHHC:21767-DB
149. The sixth point for determination is answered in the above
terms.
ABOUT TITLE SUIT NO. 11/1971
150. The seventh point for determination is whether the Trial Court
was justified in decreeing Title Suit No. 11 of 1971 after having
decreed Title Suit No. 05 of 1971 declaring that the Instrument
of Transfer dated 10.02.1968 was illegal and not binding upon
the appellants herein.
151. This point is now only academic. Admittedly, in First Appeal No.
564 of 1985, the First Appellate Court reversed the Trial Court’s
judgment and decree dated 28.06.1985 in Title Suit No. 05 of 1971
holding that the Instrument of Transfer dated 10.02.1968 was
illegal, inoperative and not binding upon the appellants herein.
152. Upon such reversal, there would be no inconsistency between the
judgments, orders and decrees in Title Suit No. 05 of 1971 and Title
Suit No. 11 of 1971. The very basis of Mr Rajeeva Sharma’s
contentions, therefore, fails. The seventh point for determination
is accordingly answered in the above terms.
153. The eighth point for determination is whether the First
Appellate Court was justified in dismissing First Appeal No.
197 of 1986, thereby affirming the patently illegal decree dated
05.02.1986 passed by the Trial Court in Title Suit No. 11 of
1971.
Page 56 of 57
Neutral Citation No. 2026:JHHC:21767-DB
154. Given the finding on the seventh point for determination, even this
point must be answered against the appellants herein. Once the
decree dated 28.06.1985 in Title Suit No. 05 of 1971 was set aside
by the First Appellate Court in First Appeal No. 564 of 1985, there
was nothing wrong with the First Appellate Court dismissing First
Appeal No. 197 of 1986, thereby affirming the Trial Court’s decree
dated 05.02.1986 in Title Suit No. 11 of 1971.
155. In fact, that was a natural consequence, and no fault can be found
with the First Appellate Court’s judgment, decree and order on this
score. The eighth point for determination is answered
accordingly.
CONCLUSIONS
156. For all the above reasons, we are satisfied that there is no merit in
both these appeals. Consequently, we dismiss these appeals without
any order as to costs. IAs, if any, pending in these appeals will not
survive and are disposed of.
(M. S. Sonak, C.J.)
(Rajesh Shankar, J.)
July 23, 2026
A.F.R.
Manoj/Cp.2
Uploaded on 23.07.2026
Page 57 of 57
