Judgment:
D.G. Deshpande, J.
1. First Appeal was filed by Burzor Joshi. He was the sole appellant. There were seven respondents. But Respondent Nos. 1, 2 and 3 were the contesting respondents. The contesting respondents, in the appeal, have filed this Review Application. I am referring to the parties with their status and position in the appeal. Respondents mean, hereinafter, Applicants/Respondent Nos. 1, 2 and 3 to the appeal and, opponent means Opponent Burzor Joshi in the Review Application.
2. Rule was issued in this review application and I heard it finally. Apart from making oral submissions, the advocates for the respondents and opponent also gave written submissions. The review is in respect of my order dated 26th October 2005 in the appeals by which both the Appeals were allowed and disposed off. The Appeals were First Appeal No. 1066 of 2005 and First Appeal No. 1135 of 2005. Both the appeals were filed by opponent Burzor Joshi.
3. Two grounds have been raised by the respondents in the review application as a basis for filing this review application. Firstly, according to them they got hold of certain documents after the impugned order dated 26.10.2005 and those documents throw light on the issue in controversy. Second ground relates to contents of trust deed. According to them the trust deed relied upon and referred to by both the parties did not contain material sentence, which is as under:
surviving; on failure of the lineal male heirs of the body of the said Merwanjee Framjee Panday,
According to the applicants/respondents, this sentence, which was omitted in the copy of trust deed, vitally, substantially and materially affects my interpretation of the trust deed and, therefore, this review is permissible.
4. In this regard, the counsel for the opponent-Burzor Joshi strenuously urged that the only option that was open to the applicants/respondents was to file appeal against the impugned order dated 26.10.2005 and, no case for review is made out at all. The documents, which are filed along with this review application and sought to be relied upon, were available to the applicants/respondents before the appeals were decided by me finally and, therefore, this is nothing but an attempt to bring some new evidence under the garb of filing review application. Secondly, according to the counsel for the opponent Burzor Joshi, all the submissions made by the respective parties were considered y the Court in the impugned order and, therefore, there is no case for review.
5. In view of these rival submissions regarding maintainability of this review application, it is better to go to the provisions of Code of Civil Procedure. Section 114 and Rule 1 of Order XLVII of CPC make provision for review. Section 114 reads thus:
Review --Subject as aforesaid, any person considering himself aggrieved --
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
Rule 1 of Order XLVII reads thus:
Application for review of judgment --
(1) Any person considering himself aggrieved --
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
6. It will be clear from the aforesaid two provisions regarding review that if a person feels himself aggrieved by an order from which an appeal is allowed but from which no appeal is preferred, he can apply for review if there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was passed and, secondly, if there is a mistake or error apparent on the face of the record. If either of these conditions is satisfied, a review is permissible.
7. In the instant case, when I passed the impugned order, original trust deed, which is the basis of my order, was not produced before me. In this regard, I had made following observations in Para 8 of impugned order:
None of the parties has produced before me the original Trust Deed or its amended copy. But both of them have relied upon Clause No. 8 of the Trust Deed, as is reproduced in its judgment by the City Civil Court. There is no dispute about the correct reproduction of Clause No. 8 in the said judgment.
It will be clear from the aforesaid observations that the original trust deed was not produced before me nor its amended copy and, both the parties had relied upon the Clause No. 8 reproduced by the City Civil Court in its judgment.
8. It is true that both the parties did not dispute the correctness of the judgment so far as it relates to reproduction of Clause 8 in the judgment of City Civil Court. However, when in the review application a specific contention is raised by the applicants/respondents that the aforesaid particular sentence was not reproduced, even by the City Civil Court, but the said sentence forms part of Clause No. 8 of the trust deed, this fact is not at all disputed or denied by opponent Burzor Joshi or his advocate. Therefore, the fact remains that when I passed the impugned order, it was passed without considering the aforesaid sentence. This is, therefore, a case of mistake or error apparent on the face of the record. It may be that for this, either the applicants/respondents or, opponent Burzor Joshi or, both of them were responsible. Because they did not care to produce original trust deed before me, nor did they find any mistake in the judgment of the City Civil Court in reproducing Clause 8 of the trust deed. Had both the parties been diligent at that time, the question of review could not have arisen now. Therefore, this review application has to be considered along with the submissions made by the advocates for the applicants/respondents and opponent - Burzor Joshi. It cannot be dismissed in limini on the ground that it is not maintainable.
9. So far as documents filed with the review application are concerned, the counsel for the applicants/respondents urged that the documents from Exhibits D, E, F, G, H and I were not available with them when the matter was heard and decided by me. An affidavit is filed in this regard. In para 8 of the review application it is stated by them that after receipt of copy of the judgment and after going through it, Applicant/Respondent No. 1 searched old papers and correspondence in respect of the trust during the time of Shri Rustom B. Joshi and found various files, papers and records which were in possession of later father of Respondent No. 1. These documents were not in their possession at the time of hearing of appeals. They were found after receiving copy of the judgment and, these documents do support their contentions. It is also stated that these documents were not in possession of the respondent No. 1 earlier in spite of due diligence nor it was within his knowledge and, therefore, they could not be produced at the time of hearing of appeals.
10. The assertion of applicants/respondents regarding these documents and their discovery subsequent to hearing of the appeals is denied strongly by opponent Burzor Joshi. The objection to the maintainability of review petition cannot be entertained because there is error or mistake apparent on the face of record. Once the review petition is maintainable on this ground, then the contention of the applicants/respondents about the documents can also be considered. It will be altogether different whether these documents have any bearing on the issue or add anything new to the submissions already made.
11. The question is, whether the sentence which was missing from the judgment of the City Civil Court and which, therefore, could not be considered by me, affects earlier order and, if so, to what extent.
12. The appeals filed before me and the earlier order will clearly show that the question between the parties is as to who should be the Chairman or Managing Trustee of the trust. For coming to this decision, Clause 8 of the trust deed is important and vital, so also the opinion of Retired Chief Justice Shri V.S. Deshpande - the arbitrator and also the genealogy tree.
13. It has been the contention of the applicants/respondents from the beginning that opponent Burzor Joshi is not entitled to become the Chairman-cum-Trustee of the trust, because he is not lineal male descendant of Merwanjee Framjee Panday. Admittedly, opponent Burzor Joshi is the son of great grand-daughter Gool of the original settler Merwanjee. According to opponent Burzor Joshi, this interpretation of Clause No. 8, put forth by the applicants/respondents and accepted by the City Civil Court, is wrong and, opponent-Burzor Joshi, being from the category of lineal male heir and the word 'lineal' being interpreted, in the Indian Succession Act to include female heirs also, was entitled to act as and become the Chairman-cum-Trustee of the trust.
14. At the time of passing the impugned order I had accepted the arguments and submissions of Burzor Joshi and allowed his both appeals.
15. However, the submission of respondents is that if the aforesaid missing line from Clause No. 8 of the trust deed is taken for consideration, then opponent- Burzor Joshi cannot become the Chairman-cum-Trustee and, since there is no lineal male heir of the body of said Merwanjee Framjee Panday, then residuary clause applies and a person, who is Zorastrian, can be appointed as Chairman of Trust.
16. After interpreting every line of Clause 8 of the trust deed from Paras 9 to 13 I had pointed out in those paras as to who should become Chairman-cum-Trustee and why. No dispute was raised by any of the parties about these findings or observations of mine. Then in para 13 I had reproduced following disputed portion of the trust deed.
Male descendants of such grandsons of the said Merwanjee Framjee Panday shall from time to time, successively succeed to and hold office of chairman of the trustees.
According to opponent Burzor Joshi, the grandsons, whether they are descendants from male or female, are entitled to become a Chairman of Trust. Whereas, according to the applicants, original Respondent Nos. 1, 2 and 3, it was not the intention of original settler to give any right to the sons of daughter i.e. Burzor Joshi, who is the son of grand-daughter Gool of original Settler Merwanjee.
17. In Paras 17 and 18 I had given reasons for coming to the conclusion that Burzor Joshi was entitled to become the Chairman-cum-Trustee.
In para 19, the report or the opinion given by Retired Chief Justice V.S. Deshpande was considered by me. It is clear that, while interpreting the words 'lineal male heirs' with reference to the provisions of Indian Succession Act, the contention of opponent Burzor Joshi was accepted by me.
18. However, the missing line from the trust deed, which is reproduced here again:
surviving; on failure of the lineal male heirs of the body of the said Merwanjee Framjee Panday,
makes all the difference. I am reproducing Clause 8 from the beginning till conclusion of the missing line. It will read as under:
The Said Merwanjee Framjee Panday shall upon the execution of these presents, be and become the Chairman of the First Trustees, and shall hold the office of Chairman during his lifetime, on his death the eldest male heir of his body, provided he shall have attained the age of seventeen years, shall become during his lifetime the Chairman of the Trustees, and by virtue of such office a Trustee; on the death of such eldest male heir, his eldest or only son shall be and become during his lifetime the Chairman of the Trustees and by virtue of such office a Trustee; on the death of such last mentioned Chairman and Trustee the other grandsons and the male issue and male descendants of such grandsons of the said Merwanjee Framjee Panday shall from time to time, according to seniority of age and priority of birth successively succeed to and hold the office of Chairman of the said Trustees, (the eldest son always succeeding in preference to an uncle or other male relative), and shall by virtue of such office be and become a Trustee of these presents, until there shall be no lineal male heirs of the body of the said Merwanjee Framjee Panday, surviving; on failure of the lineal male heirs of the body of the said Merwanjee Framjee Panday....
The word 'surviving' which was omitted in the Clause 8 of the judgment of the City Civil Court and in my judgment now is sufficient to make all the difference in approach and reasoning. All the portion of Clause 8 of the trust deed before the word 'surviving' is only in favour of direct male descendants of original settler Merwanjee. This word 'surviving' gives a totally different meaning to the word 'lineal male heirs', which is appearing two lines before the word 'surviving'. Use of the word in the aforesaid reproduced portion of Clause, 8 'until there shall be no lineal male heirs of the body of the said Merwanjee Framjee Panday, surviving', now clearly indicates and means that the words 'lineal male heirs' are used in a limited sense and applied to the sons and grand-sons from male heirs only and not to the grand-sons from female heirs. As rightly argued by the advocate for the applicants/respondents, no reliance can be placed on the definition of word, 'lineal' as given in the Indian Succession Act.
19. Use of the word 'lineal male heirs' again immediately after the word 'surviving in the reproduced portion above also, therefore, changes the meaning of 'lineal male descendants'. The word 'lineal male heirs' now can only mean lineal male heirs from sons and grand-sons and not lineal male heirs from daughters and grand-daughters.
20. I had already considered, in the impugned order, the opinion of Retired Chief Justice V.S. Deshpande which was sought in the matter. According to him, however, Burzor Joshi was not entitled to become a chairman-cum-trustee of the trust, because he was lineal male descendant from great-grand daughter Gool, and since there was nobody from the male descendants, he advised that residuary clause would apply and anyone from Zoroastrian community will have to be appointed. Retired Chief Justice V.S. Deshpande does not appear to have considered the omitted line from Clause 8 of the trust deed. But even then, according to him, lineal male descendant from great-grand daughter Gool, like Burzor Joshi, was not entitled to become a chairman-cum-trustee of the trust. Because when the City Civil Court reproduced the Clause 8, this sentence was not there. But even then, the City Civil Court, fell in line with the reasoning given by retired Chief Justice V.S. Deshpande.
21. Now if the reasoning given by the Retired Chief Justice V.S. Deshpande in his opinion is read in the context with the missing sentence from Clause 8 of the trust deed, then it appears that his ultimate conclusion is correct.
22. I have already stated that this missing sentence makes complete difference in interpretation of the Clause 8 of trust deed. The words used in the missing sentence and its placement in Clause 8 clearly show the intention of original settler Merwanjee Framjee Panday that he did not want trust to go in the hands of any heirs from female line of his family. All the portion of Clause 8 up to the missing sentence is absolutely clear and it relates only to male descendants from male heirs of Merwanjee Framjee Panday and, this missing sentence covers all the subsequent portion of Clause 8 acts as a pivotal or guide-lines in the interpretation of the trust deed. The use of the words, 'failure of the lineal male heirs of the body of the said Merwanjee Framjee Panday', clearly indicates the intention and object of the original settler i.e. the heirs should be from the body of Merwanjee Framjee Panday and they should be of male heirs.
23. In view of this matter, no reliance can be placed upon the definition of word 'lineal' as appears in the Indian Succession Act and, therefore, on this ground this review application is required to be allowed.
24. So far as documents filed with the review application are concerned, I do not think that they matter much either way. Because they are correspondence after the opinion of retired Chief Justice V.S. Deshpande. When the opinion of retired Chief Justice V.S. Deshpande is there, then its interpretation by other members or its acceptance or non-acceptance does not make any difference. Therefore, in my opinion, those documents are not required to be considered.
25. When the original settler had painstakingly and with clarity of thought and object made the trust deed and in a particular manner the courts are required to give effect to the true meaning of the words used, aim and object that the original settler had sought to achieve. I have already pointed out that when the matter was argued before me, nobody brought to my notice the original trust deed and nobody brought to my notice the missing sentence. No grievance was made in that regard that the judgment of the City Civil Court did not reproduce correctly the Clause 8 of the trust deed. It is only after pronouncement of impugned order in appeals that the respondents/applicants have found this error apparent on the face of record and have applied for review of the impugned order. In these circumstances, the following order is passed:
ORDER
Review Application is allowed.
The impugned order dated 26th October 2005 is set aside.
Both the appeals filed by opponent Burzor Joshi are dismissed.
The order of the City Civil Court, quashing and setting aside the Change Report No. 4019 of 1998 is upheld.
The orders of Assistant Charity Commissioner and Joint Charity Commissioner accepting Change Report No. 4019/98 are set aside and quashed.
Chairman-cum-Trustee of the Trust shall be appointed as per the residuary clause of the Trust Deed i.e. any person considered by the Trustees to be fit and proper provided he happens to be of Zoroastrian persuasion shall be nominated by the trustees within six weeks from the date of this order.
If the trustees so desire, they can seek intervention or assistance of the Charity Commissioner.