Narendralal Chowdhury and ors V. Bimal Kanti Chowdhury and ors 3 BLD (HCD) 1983 40

Fact in Short

One Girish Chandra Airch Chowdhury executed a will on 12-01-1991. One Ram Kumar was an elder Cousin of the Testator Girish . Girish Chandra and Ram Kumar were in joint property. Ram kumar had no son. Girish Chandra had three sons, Mohendra, Nabin, and Nikunja. Mohendra was taken in adoption by Ram Kumar. Girish Chandra bequeathed his entire properties in terms of the will dated 12-01-1911. In terms of the said will, Mohendra, Nabin and Nikunja would get six annas, five annas and five annas respectively in their interest and on their death the heirs would accordingly have life interest in the said shares. The beneficiaries under the will were not given any right to transfer the property in any way. Mohendra was appointed as an executor named in the will .After the death of Girish Chandra in 1912 the beneficiaries started enjoyment in the properties in the will. 

The beneficiaries under the will made a various transfer contrary to the provisions made in will.On the death of Mohendra the plaintiff prayed for a letter of administration.Then an application was filed by the plaintiff for recovery of khass possession of the properties which according to him were trust property.The Add. Disrtict Judge directed the plaintiff to seek remedy in proper forum.

Against the holding, defendant no. 16 and 19 preferred an appeal.

Issues

Whether the said will would be a trust.

Whether the condition that is clog to transfer imposed in will hits s-10 of the Transfer of Property Act, 1882.

Whether the case is barred by limitation.

Rule of Laws

Section-10 of the Transfer of Property Act, 1882 deals with the conditions restraining alienation.

S-3, 6 and 7 of the Trust  Act, 1882.

S-10 of the Limitation Act.

Cases referred

Seth Jaasumal v. Central Govt. Rehabilitation Dept. and ors 13 DLR 177 

Ram Ran Vijay Prasad v. Provience of Bihar AIR 1942 Patna 435.

Application to the fact

The defendant no.16, 18 and 19 were aggrieved and appealed to the HCD in claiming the possession from which they were evicted by the decree of the sub-ordinate judge.

In referring s-10 of the Transfer of Property Act, 1882, it was contended that the clog to transfer as contained in the will is hit by s-10 of the same.

In case of Seth Jaasumal v. Central Govt. Rehabilitation Dept. and ors is distinguished to the facts and principles.

It assisted the plaintiff case to this extent that a will does not come within the ambit of Transfer of Property Act.

Mr. Rab has contended that the will did not created a trust and that the same was not acted upon. It was referred s-3 of the Trust Act. According to s-6 of this Act of 1882, a trust is created when the author of the trust indicates with reasonable certainty by words or acts.

According to s-7 of the Act, a trust may be created by every person competent to contract.

Regarding the aforesaid provision, a trust may be created by will. In the instant case, trust was created by the will dated 12-01-1911 if another requirements are satisfied.

Ram Ran Vijay Prasad v. Provience of Bihar where it was held that the essential characteristics of trust must be expressed with reasonable certainty.

It was contended that the suit was barred by limitation and it was relied on s-10 of the Limitation Act. It was also argued that the suit is out of time since the plaintiff had knowledge of transfer before 12 years from the date.

Decision

The appeal succeed in part. The judgment and decree of the learned sub-ordinate judge are modified to the extent and the plaintiff’s suit to the extent it relates to the homesteads and the tank in the possession of defendant no. 16 and 18 stands dismissed.

Conclusion

The condition to clog the transfer imposed in will goes against s-10 of the Transfer of Property Act,1882 because condition restraining alienation is void and it was a trust created in the way of trust. In considering all the required argument the appeal was allowed partly.