REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 846-847 OF 2001

Nawab Shaqafath Ali Khan & Ors. …Appellants

Versus

Nawab Imdad Jah Bahadur & Ors. …Respondents

WITH

CIVIL APPEAL NO. 848 OF 2001

Nawab Imdad Jah Bahadur & Ors. …Appellants

Versus

Nawab Shaqafath Ali Khan & Ors. …Respondents

CIVIL APPEAL NO. 849 OF 2001

Nawab Imdad Jah Bahadur & Ors. …Appellants

Versus

Hon. The Nizam Jewellery Trust & Ors. …Respondents

CIVIL APPEAL NO. 850 OF 2001

Nawab Imdad Jah Bahadur & Ors. …Appellants

Versus

Nawab Shaqafath Ali Khan & Ors. …Respondents

CIVIL APPEAL NO. 851 OF 2001

Nawab Imdad Jah Bahadur & Ors. …Appellants

Versus

Nawab Mirzamin Ali Khan & Ors. …Respondents

J U D G M E N T

S.B. SINHA, J :

INTRODUCTION

The Nizam of Hyderabad executed a Trust Deed called “H.E.H. The

Nizam’s Jewellary Trust” dated 29.3.1951 in respect of some of his private

properties, precious gems, jewels. Ornaments, articles of jewellary and

antique pieces.

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The terms and conditions for discharging the trust are set out therein.

The trust deed has been specified in parts I, II, III of the third schedule.

Two sons of the Nizam, two sons of his elder son, two daughters of

his second son, the daughter of the Nizam through Dullan Pasha Begum

Saheba and his step brother have been mentioned in part I, the remaining

thirteen sons of the Nizam and the children of his deceased son, Kazim Jah

were mentioned in Part II and seventeen daughters have been mentioned in

part III of the third schedule.

The dispute is with regard to the terms ‘Remaining sons and

Remaining Daughters Fund’ expressed in the Will. The children of some of

the deceased remaining sons and remaining daughters seek for a direction to

the trustees to execute the Trust Deed by giving the correct interpretation to

clauses 9 to 11 of the Trust Deed.

The dispute lies in the interpretation of some of the important clauses

of the Trust deed and particularly clauses 9 and 10 thereof.

TRUST DEED

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The preamble of the Trust Deed dated 29.03.1951 states:

“AND WHEREAS the settler out of natural love

and affection which he bears towards his relatives

specified in the Third Schedule hereunder written

and for diverse other good causes and

considerations him there unto moving, is desirous

of making a settlement of the said articles

specified in the First Schedule hereunder written

and of the said securities specified in the Second

Schedule hereunder written in manner hereinafter

appearing AND WHEREAS the trustees have

agreed to become the first Trustees of these

presents as is testified by their being parties to and

executing these presents AND WHEREAS prior to

the execution of these presents the said articles

specified in the First Schedule hereunder written

and the said securities specified in the Second

Schedule hereunder written have been delivered

by the Settlor to the Trustees, NOW THIS

INDENTURE WITNESSETH as follows:-

1.in the consideration of the premises and of

natural love and affection which the settler

bears towards his relatives specified in the

Third Schedule hereunder written and for

divers other good causes and considerations

him unto moving. He the settler doth hereby

transfer unto the Trustees the said precious

gems, jewels, ornaments and other articles

of jewellery and antique pieces specified in

the First Schedule hereunder written and the

said securities specified in the Second

Schedule hereunder written and all which

articles and securities are hereinafter for

brevity’s sake referred to as “the Trust

Property” (which expression shall include

all other properties or investments or any

kind whatsoever into which the same or nay

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part thereof may be converted or varied

from time to time and such as relay be

acquired by the Trustees or come to their

hands by virtue of these presents) AND all

the right title interest claim and demand

whatsoever at law and in equity of the

Settlor in and to the Trust Property and

every part thereof TO HAVE, RECEIVE,

AND TAKE all and singular the Trust

Property unto the trustees UPON THE

TRUSTS and with subject to the powers,

provisions, agreements and declarations

hereinafter declared and contatined of and

concerning the same.

2.the Trust hereby created shall be called

“H.E.H. The Nizam’s Jewellery Trust”.”

The trustees shall divide the corpus of the principal into sixteen equal

parts and allocate them as following

·Four equal parts to and hold the same for Prince Azam Jha, the eldest

son of the settler in the manner as mentioned in clause 5.

·Four such equal parts to and hold the same upon the trust for Prince

Muazzam Jah, the second son of the settler in the manner as

mentioned in clause 6.

·One such equal part to and hold the same upon the trust for Shabzadi

Begum, the daughter of the settler by Dulhan pasha Begum Prince

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Muazzam Jah, the second son of the settlor in the manner as

mentioned in clause 7.

·One such equal part to and hold the same upon the trust for Shahbada

Nawab Basalat Jha Bahadur the step brother of the settler in the

manner as mentioned in clause 8.

·Three such equal parts to and hold the same upon trust for the sons,

grandsons and granddaughters of the settler as mentioned in Part II of

the third schedule and as mentioned in clause 9

·The remaining three equal parts to and hold the same upon trust for

the daughters of the settler specified in Part III of the third schedule

to the deed and as mentioned in clause 10.

Clause 9 of the Trust Deed reads as under:

“9.The Trustees shall hold the said three equal

parts of the Principal Fund allocated to the sons,

grandsons and grand daughters of the Settlor

mentioned in part II of the Third Schedule

hereunder written (hereinafter called “the

Remaining Sons’ Fund” UPON TRUST to divide

the same or to treat the same as notionally divided

into 126 (One hundred twenty six) equal units and

to allocate such 126 units to the respective

beneficiaries specified in part II of the Third

Schedule hereunder written in the respective

proportions set opposite their respective names in

the second column of part II of the Third Schedule

hereunder written and to hold the same upon the

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respective Trusts hereinafter declared and

contained of an concerning the same respectively,

viz:

(a)To manage the respective units of the

Remaining Sons’ Fund allocated to each

respective beneficiary as aforesaid and to collect

and to recover the interest and other income (if

any)…

(b)To pay out of the income of the respective

units of the Remaining Sons’ Fund allocated to

each such beneficiary as aforesaid and if necessary

out of the corpus thereof (including the

remuneration payable to the Trustees under the

provisions hereof) which could not be met or

defrayed out of the income or corpus of the said

securities specified in the Second Schedule

hereunder Written.

(c)During the life time of the Settlor to

accumulate and invest the net income (if any)…

(d)From and after the death of the Settlor to

pay the net income of the respective units of the

Remaining Sons’ Fund allocated to each such

beneficiary as aforesaid to each such beneficiary

absolutely for and during the terms of his or her

respective life.

(e)On the death of the survivor of the Settlor

and each Beneficiary leaving a child or children

and/or remoter issue him or her then surviving to

divide and distribute the units of Remaining Sons

Fund allocated to such beneficiary as aforesaid

amongst such child or children and/or remoter

issue of such Beneficiary per strips in the

proportion of two shares for every male child or

remoter issue of such Beneficiary to one share for

every female child or remoter issue of such

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Beneficiary tending in the same degree of

relationship and so that no person shall take whose

parent entitled to share under this clause shall be

living and further so that persons standing in the

same degree of relationship shall take between

themselves in the same proposition as above the

share which their parent would have taken if living

provided, however, that if any of the first thirteen

beneficiaries specified in the Part II of the third

schedule hereunder written (i.e. Beneficiaries

other than 7(seven) grandchildren of the Settlor

specified in item 14 of Part II of the Third

Schedule hereunder written) shall die without

leaving any child or remoter issue him surviving

then the Trustees shall on his death hold the units

of the Remaining Sons’ Fund allocated to such

beneficiary as aforesaid UPON TRUST to divide

the same into two equal parts and to allocate one

such equal part to the remaining beneficiaries

specified in Part II of the Third Schedule

hereunder written ( including 7(seven)

grandchildren of the Settlor specified in item 14 of

Part II of the Third Schedule hereunder written).

In the shares and the proportions mentioned

against their respective names in second column

thereof and to allocate the other such equal part to

the daughters of the Settlor specified in the part III

of the Third Schedule hereunder written in equal

shares and proportions and to hold and stand

possessed of the respective shares which on such

division and allocation shall go through respective

beneficiaries specified in Parts II and III of the

Third Schedule hereunder written Upon Trust to

add the same to and amalgamate the ame with the

respective units of the Remaining Sons’ Fund or

the Remaining Daughters’ Fund hereinafter

referred to (as the case may be) originally

allocated to them respectively under the provisions

of this clause and the next succeeding clause 10

hereof provided further that if any of the said

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seven grandchildren of the Settlor specified in

item 14 of Part II of the Third Schedule hereunder

written shall die without leaving any child or

remoter issue him or her surviving then the

Trustees shall on his or her death hold the units of

the Remaining Sons’ Fund allocated to such

grandchildren of the Settlor as aforesaid UPON

TRUST to divide the same in the proportions in

which the units of the Remaining Sons’ Fund are

allocated to the remaining grandchildren of the

Settlor as specified against the respective names in

the second column of the Part II of the Third

Schedule hereunder written and to hold and stand

possess of the respective shares which on such

division shall go to the respective grandchildren

specified in item 14 of Part II of the third Schedule

hereunder written UPON TRUST to add the same

and amalgamate the same with the respective units

of the Remaining Sons’ Fund originally allocated

to them respectively upon the same respective

trustees as those upon which the respective

original units to which they are added and with

which they are amalgamated as aforesaid or

directed to be held under the provisions of this

clause.”

In terms of Clause 10 of the Trust Deed, remaining daughters’ fund is

constituted and the manner in which the said fund is to be discharged is

contained therein; the relevant part whereof reads as under:

“(e)…provided however, that if any daughter of

the Settlor specified in Part III of the Third

Schedule hereunder written shall die without

leaving any child or remoter issue her surviving

then the Trustees shall on her death hold the one

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equal unit of the Remaining Daughters’ Fund

allocated to such daughter as aforesaid UPON

TRUST to divide the same into two equal parts

and to allocate one such equal part to the

remaining beneficiaries specified in Part III of the

Third Schedule hereunder written in equal shares

and proportions and to allocate the other such

equal part to the Beneficiaries specified in Part II

of the Third Schedule hereunder written (including

the 7 grandchildren of the Settlor therein

specified) in the proportions in which the units of

the Remaining Sons’ Fund are allocated to the

respective beneficiaries specified in Part II of the

Third Schedule hereunder written as specified

against their respective names in the second

column thereof and to hold and stand possessed of

the respective shares which on such division and

allocation shall go to the respective beneficiaries

specified in parts II & III of the Third Schedule

hereunder written UPON TRUST to add the same

to and amalgamate the same with the respective

units of the Remaining Sons’ Fund or the

Remaining Daughters’ Fund (as the case may be)

originally allocated to them respectively under the

provisions of the preceding clause (9) hereof and

this Clause and to hold the same respectively upon

the same respective units as those upon which the

respective original units to which they are added

and with which they are amalgamated as aforesaid

are directed to be held under the provisions of the

preceding clause 9 hereof and this clause.”

Clause 11 is a residuary clause providing for the manner in which the

trust is to be applied in respect of the ultimate beneficiaries.

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ENACTMENT

The State enacted the Nizam’s Trust Deeds (Validation) Act, 1950

(for short “the 1950 Act”). It received the Presidential Assent on

22.06.1950. Section 3 of the 1950 Act provides that notwithstanding

anything contained in any other law for the time being in force, trust deed

mentioned in the Schedule shall be valid and effectual for all purposes and

shall have the force of law. The 1950 Act underwent an amendment in the

year 1951. The trust deed in question was inserted as Item No. 7 in the

Schedule of the 1950 Act.

BENEFICIARIES

The trust deed mentions 13 beneficiaries in Part II. Indisputably,

beneficiaries at Sl Nos. 1 to 5, 7, 8, 11 and 12 have died and the corpus of

their respective shares, in terms of the deed of trust, have devolved upon

their heirs and successors including the appellants of Civil Appeal No. 846

of 2001, following stirpital succession. Beneficiaries at Sl Nos. 9, 10 and

13, however, are alive and the 6

th

beneficiary has died issueless.

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So far as the beneficiaries specified in Part III are concerned, they are

17 in number. The beneficiaries at Sl Nos. 2, 4, 5, 7, 12 and 15 have died

and their heirs and legal representatives including the appellants herein have

succeeded to their units. Those at Sl Nos. 1, 6, 8, 9, 10, 11, 13 and 14 have

died without any issue. The beneficiaries at Sl Nos. 3, 16 and 17 are alive.

PROCEEDINGS

Indisputably, the appellants filed an original petition No. 173 of 1998

in the Court of Chief Judge, City Civil Court, Hyderabad purported to be

under Sections 56 and 61 of the Indian Trusts Act, 1882 praying for

directions to the trustees to execute the trust deed as per the correct

interpretation of clauses 9, 10 and 11 of the trust deed.

Respondent No. 1 also filed an original application before the Chief

Judge, City Civil Court which was marked as Original Petition No. 253 of

1998 seeking directions to the trustees to execute trust deed according to the

terms contained therein.

In the same year, some of the children of the remaining sons and

daughters who predeceased those remaining sons and daughters who died

12

issueless like the appellants herein filed a suit which was marked as O.S.

No. 383 of 1998 praying inter alia for the following reliefs:

“(1)Mandatory injunction against the Trustees

to correctly interpret and apply the provisions of

clause 8 of the Trust Deed by making all

allocations and amalgamations of Trust funds

concerned therein including in the same all

beneficiaries named in the parties 2 and 3 of III

Schedule irrespective of whether they pre-

deceased the beneficiaries dying issueless or not,

and thereafter allocate their shares to their legal

heirs in accordance with law,

(2)Issue a perpetual injunction against the

trustees restraining them mis-interpreting or

wrongly applying the provisions of clauses 8 to 10

of the Trust Deed, or

(3)Restraining the trustees from making

allocations or amalgamations of Trust Funds

concerned and making any payments, without

giving two weeks advance notice to plaintiffs.”

Forty similarly placed children of the deceased sons and daughters

filed another suit which was marked as O.S. No. 540 of 1998 for declaration

that they have vested rights in the corpus and accretion of the ‘remaining

sons fund’ to the extent of Rs. 2,22,99,200/-.

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In the aforementioned suit, heirs and legal representatives of the

grand children of the settler were impleaded as parties.

In the said suit, the following three issues were framed:

“1.Whether the plaintiffs are entitled for

declaration in respect of the corpus fund as prayed

for?

2.Whether the plaintiffs are entitled for

mandatory injunction against the defendants and

their successor trustees and secretary of the

defendant no. 1 Trust, as prayed for?

3.Whether the plaintiffs are entitled for

perpetual injunction against the defendants and

their successor trustees and secretary of the

defendant no. 1 Trust, as prayed for.”

The aforementioned two original petitions as also the suits were taken

up for hearing together. In the said original petitions as also the said suits a

preliminary question was raised as to whether the surviving remaining sons

and daughters of the Settlor are alone entitled to the corpus allotted to the

remaining sons and remaining daughters who died issueless. The learned

Judge passed a common judgment on 21.07.1999.

FINDINGS

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The principal findings of the learned Judge were:

(i)“Coming back to the interpretation of sub-clause (e) of clauses 9

and 10, it can be held that the Settlor intended that even the

children of a pre-deceased remaining son of a remaining daughter

are entitled to a share in the unit allocated to the remaining son or

daughter who died issueless. The reason is that, an absurd

situation would arise if the contentions of the Trustees that

surviving remaining sons and remaining daughters are only

entitled to a share is accepted, if the last person who die is a

issueless a remaining son and remaining daughter…”

(ii)“A reading of the said Clause discloses that the Settlor intended

that the entire Principal Fund obtained by the sale of the jewellery

should be handed over and transferred to the beneficiaries or

ultimate beneficiaries named in the Trust Deed….In the same way,

the children of the remaining sons and remaining daughters are

ultimate beneficiares of the units allocated to the respective

remaining sons or remaining daughters…”

(iii)“The argument of the Trustees, that the children of the remaining

sons and remaining daughters are not beneficiaries at all and that

they are owners consequent upon the death of the remaining sons

or remaining daughters, is not contemplated by the Settlor, as he

referred to such grand children as “ultimate respective

beneficiaries” who are entitled to receive the main corpus itself as

per the directions in the Trust Deed in clause 11 of the Trust

Deed.”

(iv)“…The Settlor directed in sub-clause 4 and 5 (numbered by me) in

clause 9(e) that the units allocated to the remaining son who died

issueless shall be divided into (2) parts and to allocate one such

part to the remaining beneficiaries specified in Part - II of the 3

rd

Schedule including grandchildren in the shares and proportions

mentioned against their respective names in the second column

thereof and to allocate the other such part to the daughters of the

settlor specified in part – III of the Third Schedule hereunder

written, in the equal shares and proportions. Similarly, the

direction is repeated for clause 10(e). This direction can be

15

implemented only if the contention of the children of deceased

remaining sons and daughter is accepted. Then only the units

allocated to the deceased remaining sons or remaining daughters

can be distributed in shares and proportions as mentioned against

their respective names in the second column thereof. If the

interpretation of Trustees and surviving remaining sons and

daughters is accepted, this direction of the Settlor cannot be

implemented, for the reasons that consequent upon death, some of

the remaining sons and daughters, there cannot be 126 units in

Part II or 17 units in part – III”.

(v)“…The Settlor did not use the word “remaining daughters” in

clause 9(e) or “remaining sons or grand children” in clause 10(e)

…”

On the plea that nothing is left to be amalgamated in case of units of

predeceased sons and daughters as the corpus was already given to them,

the learned Judge noted:

(a)Some of the surviving sons and daughters have also taken the

entire corpus by adopting the novel method by means of a

compromise between the life estate holder and the remainder estate

holder,

(b) Few lakhs of rupees from out of the units allocated to each of

the remaining son or daughter who died wereretained by the Trustees.

The learned Judge held:

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“In the result, it is held that whenever anyone of

the remaining sons or remaining daughters, dies

issueless, the unit allocated to him or her, as the

case may be, shall be distributed amongst the

surviving remaining sons and remaining daughters

as well as the respective children of the deceased

remaining sons and remaining daughter and also to

7 grandchildren shown in item 14 of the part II of

third schedule or their children as per the units

allocated to them. The surviving remaining sons

and daughter and persons shown in item 14 can

only receive net income on the amount

amalgamated to their units whereas the respective

children of the deceased remaining sons and

remaining daughters, as the case may be, are

entitled to receive the total amount, corpus and

accretions allocated to their respective father or

mother as the case may be , as per direction given

in clauses 9 (e) and 10 (e) of the trust Deed.”

The learned Judge issued the following directions:

“…This advice is given to the Trustees in OP

173/1998 and OP 253/1998 and this finding is

given on preliminary point in OS 383/1998 and

OS 540/1998…”

Indisputably, pursuant to or in furtherance of the said directions, no

decree was prepared in the O.S. No. 540 of 1998.

PROCEEDINGS BEFORE THE HIGH COURT

17

Aggrieved by and dissatisfied with the judgment and order dated

21.07.1999, Respondent Nos. 1 and 2 in Civil Appeal No. 846 of 2001 and

Respondent No. 2 in Civil Appeal No. 847 of 2001 filed civil revision

petitions before the High Court under Article 227 of the Constitution of

India and Section 115 of the Code of Civil Procedure. However, the

purported common order so far as it related to the preliminary issue in the

two suits was not challenged. The High Court by reason of the impugned

judgment held:

“(i)The impugned order is the common order

passed in two O.Ps i.e., O.P. No. 173 of 1998 and

O.P. No. 253 of 1998 and the two suits as

preliminary issues. Although the order insofar as

it relates to the two O.Ps. is bad for want of

necessary jurisdiction, the order in so far as it

relates to the preliminary issues in the two suits is

concerned is unquestionable on the point of

jurisdiction…”

(ii)“…The petitioners who preferred these two

revision petitions have surprisingly not filed

appropriate proceedings as against the order

pertaining to the two suits. In that view of the

matter, the common order becomes unassailable

except holding that the original petitions are not

maintainable.”

Despite the aforementioned findings, the High Court proceeded to

consider the merit of the matter holding:

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“(i)“…The various legal pleas thus raised by

the learned counsel for the petitioners attacking

the Trust deed and the Nizam’s trust Deeds

Validation Act and the Validation Amendment Act

are therefore not tenable and cannot be

countenanced”.

(ii)“…In both these cases, suits ought to have

been filed under Section 9 of the Civil Procedure

Code before the appropriate courts, but not the

original petitions before the Principal Civil Court

of original jurisdiction. The position is clear and

both the petitions cannot be maintained under

Section 56 and 61 of the Trusts Act…”

(iii)“…The intention of the settler as discussed

supra is not to allow the property to percolate to

the other persons or to other successors either

nearer or remoter except those specified…”

(iv)“…As discussed by me supra, in the

absence of the words ‘specified in the schedule’

there should have been some scope for any

interpretation, but in the presence of the words

‘specified in the schedule’, I do not think that

there is any scope for any interpretation than the

one, which is consistent with the view taken by me

above…The view taken by the court below, for the

above reasons, is not correct legal and proper and

is, therefore, liable to be set aside…”

PROCEEDINGS BEFORE THIS COURT

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Appellants preferred Special Leave Petition Nos. 4372-4373 of 2000

which came up for preliminary hearing on 27.03.2000, on which date a

Division Bench of this Court ordered:

“Adjourned for two weeks as learned senior

counsel for the respondents says that he wants to

challenge the impugned order of the High Court so

far their O.P. is held to be not maintainable.”

Pursuant to or in furtherance of the said observations, the respondents

in C.A. Nos. 846-847 filed special leave petitions against the order of the

High Court and they upon grant of leave were marked as C.A. No. 848 of

2001 and 849 of 2001.

Two special leave petitions were also filed before this Court by the

respondents, questioning the correctness or otherwise of the order dated

21.07.1999 passed by the learned Chief Judge, City Civil Court, Hyderabad.

These were eventually marked as C.A. Nos. 850-851 of 2001.

SUBSEQUENT EVENTS

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The preliminary issue in O.S. No. 540 of 1998 having already been

decided, the other issues framed therein which appeared to be consequential

in nature were determined by the Chief Judge, City Civil Court by an order

dated 3.04.2000 decreeing the suit declaring that the plaintiffs have vested

rights in the corpus and accretion of the remaining sons fund and remaining

daughters fund.

Indisputably, an appeal, which was marked as CCA No. 114 of 2000,

was preferred thereagainst by the trustees. A Civil Miscellaneous Petition,

which was marked as CMP No. 11230 of 2000, has also been filed.

Concededly, the said appeal and the civil miscellaneous petition are

pending.

By an order dated 6.07.2000, the High Court directed that the

aforementioned decree dated 3.04.2000 of the City Civil Court shall not be

given effect to pending notice.

This Court by an order dated 10.04.2000 issued notices in the special

leave petitions filed by the respondents.

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By an order dated 21.01.2000, special leave to appeal has been

granted, observing:

“pending the disposal of the appeal, the High court

may proceed to hear and dispose of CCA No. 114

of 2000 but it shall do so independently and

uninfluenced by the judgment and order under

challenge insofar as it deals with the merits.”

SUBMISSIONS

Mr. P.P. Rao, learned senior counsel appearing on behalf of the

appellant, would raise the following contentions:

(i)Whether in view of the fact that the civil revision applications

were filed against the order dated 21.07.1999 passed in original

applications which having been found to be not maintainable, the

High Court should have held that the civil revision petitions were

also not maintainable.

(ii)Respondents having not filed any appeal or civil revision

application against the order dated 3.04.2000 passed in the

22

original suits filed by the appellants, the respondents would be

deemed to have abandoned the remedies available to them.

(iii)The High Court could not have entered into the merits of the

matter as no appeal or civil revision application having been filed

against the common order passed in original suit Nos. 348 and 540

of 1999, they attained finality and, thus, the civil revision

applications filed against the order dated 21.07.1999 passed

against the applications were barred by the principles of res

judicata. Reliance in this behalf has been placed on C.V.

Rajendran and Another v. N.M. Muhammed Kunhi [(2002) 7 SCC

447].

(iv)In any event, interpretation of the deed of trust being a question of

law, the civil revision application under Section 115 of the Code

of Civil Procedure or under Article 227 of the Constitution of

India was not maintainable.

(v)The preliminary issue having the force of a decree, an appeal lay

thereagainst and, thus, a revision application under Section 115 of

the Code of Civil Procedure and/ or Article 227 of the

Constitution of India was not maintainable.

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(vi)As the civil revision application in terms of Section 115 of the

Code of Civil Procedure was not maintainable, the provisions of

Article 227 of the Constitution of India could not have been taken

recourse to. Reliance in this behalf has been placed on Ouseph

Mathai and Others v. M. Abdul Khadir [(2002) 1 SCC 319]

(vii)No special leave petition is maintainable against the original order

dated 21.07.1999 of the Chief Judge, City Civil Court, Hyderabad

as by reason thereof the High Court has been by-passed. Reliance

in this behalf has been placed on Chandi Prasad Chokhani v. State

of Bihar [(1962) 2 SCR 276 and Taherakhatoon (D) By LRs. v.

Salambin Mohammad [(1999) 2 SCC 635].

(viii)In view of the finding of the High Court that the original

applications under the Indian Trusts Act were not maintainable, it

acted illegally and without jurisdiction in entering into the merit of

the matter and, thus, the impugned judgment is a nullity.

(ix)On merits, the High Court committed a serious error in passing the

impugned judgment insofar as it failed to construe the principles

of construction of a trust deed by placing itself in the armchair of

the settlor.

24

(x)The settlor having intended to provide some property not only to

the sons and daughters and the grand-children who are alive could

not have intended to deprive heirs and legal representatives of

those who had died issueless.

(xi)The trustees in implementing the deed of trust could not have

ignored a well thought of scheme of the settlor in terms whereof

he intended to make no discrimination between the heirs and legal

representatives and by reason whereof, he intended to make

provisions not only for the children and grand-children who were

then alive but also for the grand-children and great-grand children

who were yet to be born.

(xii)From a perusal of the deed of trust, it would be evident that

wherever the settlor intended to grant special benefit either to a

heir or to a trust, he having specifically provided therefor. Having

regard to the fact that the heirs and legal representatives of the

deceased’s son or daughter having not been excluded, the High

Court could not have interfered with the well-reasoned findings of

the Chief Judge, City Civil Court.

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(xiii)The principle in the original applications as also the suits being

primarily directed against the trustees, the heirs and legal

representatives of the daughters were required to be impleaded.

Mr. Dushyant A. Dave, learned senior counsel appearing on behalf of

the respondents, and Mr. Rajendra Choudhary, learned counsel appearing

on behalf of the trustees, on the other hand, would contend:

(i)the trust deed being a deed of gift based on inheritance or

otherwise, the application before the City Civil Court was not

maintainable.

(ii)The settlor having executed the Will in three parts. Each part

dealing with specific matters contained in the Second Schedule,

the Third Schedule and the Residuary and having provided for the

specific manner in which the benefit is to be conferred as also

mode of discharge, the High Court must be held to have justified

in arriving at a finding in regard to the intention of the settlor.

(iii)The settlor having used the term “allocate” in a number of places,

the construction which would be contrary to or inconsistent

therewith should be avoided.

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(iv)The deed of trust having operated during the period 1952 to 1958

to the satisfaction of all those beneficiaries who have died

issueless after 1958, the heirs and legal representatives could not

have been given any benefit as by that time the corpus of the trust

had clearly been divided.

(v)As clauses 9(e) and 10(e) of the deed specifically provided that

when a beneficiary dies, his children would get the same; the

children of beneficiaries who have already been pre-deceased

cannot be held to have derived any interest in the corpus of trust or

otherwise.

(vi)So far as the daughters are concerned, the point of devolution of

interest should be kept in mind as in case of death of one daughter

her share goes to children but the same would not be the position

when the daughter of a daughter dies.

(vii)Having regard to the rival contentions of the parties and the

decisions of the Trial Judges whereby discretionary jurisdiction in

terms of Sections 56 and 61 read with Section 34 of the Indian

Trusts Act which have limited application having not been

exercised, the High Court should not have interfered therewith.

27

(viii)The findings on the suit being subject to passing of a decree, a

civil revision application against the order dated 21.07.1999 was

maintainable.

(ix)The trust deed should be construed in a manner so as to achieve a

certainty, as provided for under Section 6 of the Indian Trusts Act

read with illustrations (c) and (d) appended thereto.

(x)Respondents being the children of the predecessor-in-interest and

daughters having got the benefits cannot claim any benefit once

over again on the ground that they were also entitled as heirs and

legal representatives of the pre-deceased sons and daughters who

had died issueless.

(xi)Special leave having been granted, in the peculiar facts and

circumstances of this case, this Court should exercise its

discretionary jurisdiction under Article 139A of the Constitution

of India and render a final decision in the matter keeping in view

the passage of time.

(xii)Article 136 of the Constitution of India should be widely

construed so as to take into consideration a situation of this nature

where a litigation based on construction of a deed may finally be

adjudicated upon by this Court.

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(xiii)As no decree had been passed in the suit, it would not be correct to

contend that the preliminary question raised would be a

preliminary issue as envisaged under Order XIV, Rule 1 of the

Code of Civil Procedure.

(xiv)Once a leave has been granted, any decision rendered thereon

could attract the doctrine of merger as has been held by this Court

in Kunhayammed and Others v. State of Kerala and Another

[(2000) 6 SCC 359].

OUR FINDINGS

The learned Trial Judge and the High Court adopted two different

principles of interpretation of the trust deed. Whereas the learned Trial

Judge applied the principle of contextual interpretation, the High Court

applied the principle of literal interpretation.

It is, however, not in dispute that an appeal as also civil revision

application are pending before the High Court. We could have entered into

the merit of the matter to determine the question as regards interpretation of

the Will one way or the other but keeping in view the fact that the

aforementioned proceedings are pending before the High Court, we as at

present advised are not inclined to do so.

29

The High Court opined that the civil revision applications filed

against the order dated 21.07.1999 were not maintainable. It is also not in

dispute that no appeal was preferred against the order dated 3.04.2000.

The findings rendered in the order dated 21.07.1999 did not amount

to a decree. The suit was not finally disposed of thereby. No appeal lay

against a mere finding. An appeal would be maintainable only when a

decree is passed. The matter might have been otherwise if a decree was to

be recorded formally pursuant to the decision so rendered. It was not

considered to be even an order passed in terms of Order XIV, Rule 2 of the

Code of Civil Procedure.

Once the civil revision applications were held to be not maintainable

ordinarily the High Court should not have entered into the merit of the

matter.

It is true that preliminary issues were decided by an order dated

21.07.1999. It is, however, not in dispute that as several other issues were

framed including the additional issues, which we have noticed hereinbefore,

30

in terms whereof the suit was ultimately decreed by a judgment and order

dated 3.04.2000, an appeal thereagainst has been filed. A civil

miscellaneous application has also been filed.

A decree was not passed pursuant to or in furtherance of the order

dated 21.07.1999. It may be true that in terms of Section 105 of the Code of

Civil Procedure when an appeal against the final decree is passed, legality

of the said order could be challenged in the appeal. Only because a civil

revision application has not been filed, the same, in our opinion, would not

attract the principle of res judicata as an appeal from the final decree could

still be maintained.

In C.V. Rajendran (supra), while holding that the principle of res

judicata applies in different stages of the same proceedings, it was held:

“…Here what is sought to be reagitated is not

really the order of remand but the order deciding a

germane issue which was allowed to become final

at an earlier stage of the same suit. The principle

of res judicata applies as between two stages in the

same litigation so that if an issue has been decided

at an earlier stage against a party, it cannot be

allowed to be reagitated by him at a subsequent

stage in the same suit or proceedings. This

31

position is laid down in Hope Plantations Ltd. v.

Taluk Land Board to which one of us (Syed Shah

Mohammed Quadri, J.) was a party.”

However, as noticed hereinbefore, in this case, an appeal from a final

decree is maintainable.

Ordinarily again a special leave petition would not be entertained

directly from a judgment and order of the Chief Judge, City Civil Court,

Hyderabad. [See Chandi Prasad Chokhani (supra)]

Maintainability of the civil revision application has been questioned

inter alia on the premise that an interpretation of a deed involves a question

of fact and not a question of jurisdiction.

Mr. Rao has placed strong reliance in this behalf on M/s. D.L.F.

Housing and Construction Company (P.) Ltd., New Delhi v. Sarup Singh

and Others [(1969) 3 SCC 807]. In that case, it was held:

“5. The position thus seems to be firmly

established that while exercising the jurisdiction

under Section 115, it is not competent to the High

32

Court to correct errors of fact however gross or

even errors of law unless the said errors have

relation to the jurisdiction of the Court to try the

dispute itself. Clauses (a) and (b) of this section on

their plain reading quite clearly do not cover the

present case. It was not contended, as indeed it

was not possible to contend, that the learned

Additional District Judge had either exercised a

jurisdiction not vested in him by law or had failed

to exercise a jurisdiction so vested in him, in

recording the order that the proceedings under

reference be stayed till the decision of the appeal

by the High Court in the proceedings for specific

performance of the agreement in question. Clause

(c) also does not seem to apply to the case in hand.

The words “illegally” and “with material

irregularity” as used in this clause do not cover

either errors of fact or of law; they do not refer to

the decision arrived at but merely to the manner in

which it is reached. The errors contemplated by

this clause may, in our view, relate either to breach

of some provision of law or to material defects of

procedure affecting the ultimate decision, and not

to errors either of fact or of law, after the

prescribed formalities have been complied with.

The High Court does not seem to have adverted to

the limitation imposed on its power under Section

115 of the Code. Merely because the High Court

would have felt inclined, had it dealt with the

matter initially, to come to a different conclusion

on the question of continuing stay of the reference

proceedings pending decision of the appeal, could

hardly justify interference on revision under

Section 115 of the Code when there was no

illegality or material irregularity committed by the

learned Additional District Judge in his manner of

dealing with this question. It seems to us that in

this matter the High Court treated the revision

virtually as if it was an appeal.”

33

Reliance has also been placed by Mr. Rao on Ouseph Mathai (supra)

wherein it was held:

“…In fact power under this article casts a duty

upon the High Court to keep the inferior courts

and tribunals within the limits of their authority

and that they do not cross the limits, ensuring the

performance of duties by such courts and tribunals

in accordance with law conferring powers within

the ambit of the enactments creating such courts

and tribunals. Only wrong decisions may not be a

ground for the exercise of jurisdiction under this

article unless the wrong is referable to grave

dereliction of duty and flagrant abuse of power by

the subordinate courts and tribunals resulting in

grave injustice to any party.”

A civil revision application although must necessarily having regard

to the terminologies used in Section 115 of the Code of Civil Procedure

involve the question of jurisdiction, the question which would arise is as to

what are the jurisdictional questions. A jurisdictional question may arise

not only when a court acts wholly without jurisdiction but also in a case

where jurisdictional errors are committed while exercising jurisdiction.

There are various facets of ‘jurisdictional errors’. Taking into consideration

any irrelevant fact or non-consideration of a relevant fact would involve

34

jurisdictional issue. This aspect of the matter has also been considered in

Ajantha Transports (P) Ltd., Combatore v. M/s. T.V.K. Transports,

Pulampatti, Combatore District [(1975) 1 SCC 55] in the following terms:

“27. Relevancy or otherwise of one or more

grounds of grant or refusal of a permit could be a

jurisdictional matter. A grant or its refusal on

totally irrelevant grounds would be ultra vires or a

case of excess of power. If a ground which is

irrelevant is taken into account with others which

are relevant, or, a relevant ground, which exists, is

unjustifiably ignored, it could be said to be a case

of exercise of power under Section 47 of the Act,

which is quasi-judicial, in a manner which suffers

from a material irregularity. Both will be covered

by Section 115 of the Civil Procedure Code.”

It is not correct to contend that even if the revisional jurisdiction is

not available, a remedy in terms of Articles 226 and 227 of the Constitution

of India would also not be available in law. This aspect of the matter has

been considered by this Court in Surya Dev Rai v. Ram Chander Rai and

Others [(2003) 6 SCC 675] opining that not only the High Court can

exercise its supervisory jurisdiction for the purpose of keeping the

subordinate courts within the bounds of its jurisdiction as envisaged under

Article 227 of the Constitution of India; even a writ of certiorari can be

35

issued wherefor the subordinate or inferior courts would be amenable to the

superior courts exercising power of judicial review in terms of Article 226

thereof.

Strong reliance has been placed by Mr. Rao on a decision of this

Court in Taherakhatoon (supra) wherein it was opined that the discretionary

jurisdiction of this Court under Article 136 of the Constitution of India can

be denied even after grant of leave unless exceptional and special

circumstances exist that substantial and grave injustice has been done. It

was held:

“20. In view of the above decisions, even

though we are now dealing with the appeal after

grant of special leave, we are not bound to go into

merits and even if we do so and declare the law or

point out the error — still we may not interfere if

the justice of the case on facts does not require

interference or if we feel that the relief could be

moulded in a different fashion…”

There is no quarrel with the aforementioned proposition, but, as has

been noticed in that case itself the discretionary jurisdiction is to be

36

exercised keeping in view the fact and circumstance of each case and no

hard and fast rule can be laid down therefor.

There is another aspect of the matter which cannot also be lost sight

of. Applications were filed before the District Court also under Sections 56

and 61 of the Indian Trusts Act praying for issuance of directions to the

trustees. Such directions if issued ordinarily would be binding on them.

The trustees, therefore, would be entitled to take recourse to a remedy

available before a superior court, if they are aggrieved by such direction. If

the High Court had the jurisdiction to entertain either an appeal or a revision

application or a writ petition under Articles 226 and 227 of the Constitution

of India, in a given case it, subject to fulfillment of other conditions, could

even convert a revision application or a writ petition into an appeal or vice-

versa in exercise of its inherent power. Indisputably, however, for the said

purpose, an appropriate case for exercise of such jurisdiction must be made

out.

Furthermore, this trust deed is not an ordinary one. It is a part of a

statute. In the case of a wrong interpretation of a statute relating to

jurisdiction of a court enabling it to issue a direction, it would amount to a

37

jurisdiction error. In that sense, the courts were required to exercise their

jurisdiction with more care and caution.

For the reasons aforementioned, we are of the opinion that interest of

justice would be subserved if the matters are directed to be considered

afresh by the High Court together with the pending appeal and

miscellaneous applications. The special leave petitions filed before us

against the order dated 21.07.1999 shall be returned to the petitioners

thereof so as to enable them to re-file the same before the High Court which

may also be considered on its own merits. We pass these directions in

exercise of our power under Article 142 of the Constitution of India. These

appeals are disposed of accordingly.

For the aforementioned observations and directions, we would

request the High Court to consider the desirability of disposing of the matter

as expeditiously as possible. No costs.

………………………….J.

[S.B. Sinha]

..…………………………J.

38

[Cyriac Joseph]

New Delhi;

March 05, 2009

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