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 6th 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

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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 3rd 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

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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

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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

19

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

20

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.   

21

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.

23

(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.

25

(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.

26

(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.   

28

(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

39