Arun Kumar Bhattacharya, J.
1. In this suit, the original plaintiff Subol Charan Seal, since deceased and substituted by heirs, has prayed for a declaration that the deed dated 28.12.56 executed jointly by Radheshyam Seal and Sabitri Seal and deed dated 17.12.62 executed by Sabitri Seal are inoperative, null and void, for partition and other reliefs.
2. Shortly put, and shorn of details, the plaintiffs' case is that Radheshyam Seal, father of the original plaintiff Subol Charan Seal, hereinafter referred to as the plaintiff, and defendant. No. 1 Parbati Sankar Seal, since deceased and substituted by heirs, and defendant No. 2 Hiralal Seal, who was the owner of immovable properties, as described in schedule 'A' and movable properties, as described in schedule 'B' to the plaint, executed a deed of settlement/trust on 01.09.37 in respect of three properties, as described in schedule 'A', providing that he and his wife Sabitri seal would act as joint trustees thereof and they may reside in the trust property at 4, Krishna Behari Sen Street, Calcutta and collect rents, profits and interest income and use the same for their benefit in equal shares. After the death of either of them the surviving trustee would act in terms of the stipulations of the trust deed. Thus trust properties would be held by them in trust for such of their sons and/or son's sons and/or son's son's sons in such shares and in such manner as they jointly during their lifetime or after the death of either of them the survivor shall by any deed or deeds with or without power of revocation and new appointment may determine. After their death there would be no trustee, and in default of any such appointment of any trustee their sons will get the trust properties absolutely and in equal shares. The said deed did not incorporate any provision of appointment of any other trustee or trustees and revocation of the trust. The said Radheshyam and Sabitri held the trust properties in trust for the beneficiaries i.e. their sons defendant Nos. 1 and 2 and the plaintiff, and the daughters viz defendant Nos. 4 to 6 were not and are not beneficiaries under the deed.
3. On or about 28.12.56 the joint trustees Radheshyam and Sabitri executed a deed of appointment stating that they would hold the trust properties at 4, Krishna Behari Sen Street, Calcutta, hereinafter referred to as Calcutta property (item No. 1 of schedule 'A') and at Jasidih (item No. 2 of schedule 'A') in trust for defendant Nos. 1 and 2 absolutely and for ever, declaring most improperly that the plaintiff would not get and has no right, title and interest in the said properties, without assigning any reason therefor. Shortly after the death of Radheshyam on 25.06.62, the surviving trustee Sabitri executed another deed of appointment on 17.12.62 stating that she would hold the trust property at Chinsurah, Hooghly (item No. 3 of schedule 'A') in trust for defendant Nos. 1 and 2 absolutely and for ever, declaring most illegally and arbitrarily that the plaintiff would have no right, title and interest in the said property. Sabitri died on 26.02.75 without appointing any trustee or trustees.
4. The joint trustees did not act in accordance with the provisions of law relating to the trust properties and did not discharge their duties as trustees to protect the interest of the beneficiaries of the trust properties. The joint trustees instituted a suit being Suit No. 708/62 in this Court for eviction of the plaintiff from the Calcutta property with some wild and false allegations alleging him as licensee, without any cause which is still pending. The plaintiff had all along been living with his perents and brothers jointly in the Calcutta property till the end of December, 1956 when he was forced to live separately there with his wife and children at the instigation of defendant Nos. 1 and 2. No deed of revocation was ever executed by the said joint trustees either jointly or severally. Under the trust deed the plaintiff and defendant Nos. 1 and 2 are only beneficiaries in whom the trust properties had devolved in equal shares after the death of joint trustees and all of them have been jointly possessing the same. Defendant Nos. 1 and 2 by taking recourse to the said suit No. 708/62 are trying hard to cause serious trouble to the plaintiff to enjoy the said trust properties. As the said two deeds dated 28.12.56 and 17.12.62 had cast veritable clouds on the right, title and interest in respect of the joint properties of the beneficiaries, the same are required to be cancelled and declared null and void. As disputes and differences have arisen in respect of joint possession and enjoyment of the said properties, it would be fair and reasonable to partition them by metes and bounds. Hence, the suit.
5. The suit is contested by defendant No. 1, since deceased and substituted by heirs and defendant No. 2 by filing a written statement inter alia denying the material allegations made in the plaint. Their case, in short, is that by an order dated 08.09.76 this Court appointed defendant Nos. 1 and 2 as trustees in respect of the trust created by the deed dated 01.09.37 and two deeds of appointment dated 28.12.56 and 17.12.62. Since January, 1957, the trustees Radheshyam and Sabitri allowed the plaintiff on his request to live in two rooms with a kitchen and verandah in the first floor and a courtyard and privy in the ground floor of premises No. 4, Krishna Behari Sen Street, Calcutta with leave and licence which was cancelled and revoked by them by a letter dated 05.12.61 through their Advocate/Solicitor calling upon him to vacate the said portion of the premises within thirty days from that date. As the plaintiff failed to comply with the requisition, the trustees instituted a suit being Suit No. 708/62 on 28.04.62 forpossession and damages. After the death of Radheshyam, the properties including premises No. 4, Krishna Behari Sen Street, Calcutta vested in the surviving trustee Sabitri who acted as sole trustee until her death. The plaintiff was a bare licensee in respect of Calcutta property and he was never in enjoyment of Calcutta or Chinsurah or Jasidih property. The plaintiff has no right, title or interest in the said properties nor he is beneficiary in respect of the same, nor he ever held the properties jointly with the defendants. Hence, the suit merits dismissal.
6. Upon the above pleadings, the following issues were framed:
1. Has the plaintiff any cause of action to institute the suit?
2. Is the suit barred by limitation?
3. Did the trust properties vest in three sons on the death or Radheshyam Seal and Sabitri Seal as beneficiaries under the deed of trust, as alleged?
4. What are the scope and effect of the trust deed dated 01.09.1937 and subsequent two deeds of appointment dated 28.12.56 and 17.12.62? Are the said deeds of appointment dated 28.12.56 and 17.12.62 legal and valid?
5. Is the plaintiff entitled to get a decree, as prayed for?
6. To what relief, if any, is the plaintiff entitled?
7. Issue No. 2 : Not pressed.
8. Issue Nos. 1, 3 to 6 : All these issues are taken up together for the sake of convenience and brevity and in order to avoid repetition.
9. The facts admitted and/or undisputed in the present case, as are evinced from the pleadings and documents filed, are as follows:
Radheshyam Seal, father of the plaintiff Subol Charan Seal, since deceased and substituted by heirs, defendant No. 1 Parbati Sankar Seal, since deceased and substituted by heirs and defendant No. 2 Hiralal Seal executed a deed of trust on 01.09.37 in respect of three properties viz premises No. 4, Krishna Behari Sen Street, Calcutta-6 (item No. 1 of schedule 'A' of the plaint), Jasidih property (item No. 2 of schedule 'A') and Chinsurah property (item No. 3 of schedule 'A') providing that he and his wife Sabitri Seal (mother of the plaintiff and said defendant Nos. 1 and 2) would act as joint trustees in respect of the said properties, that they during their lifetime may reside in the Calcutta property and collect rents, profits, interest and income of the properties and use the same for their benefit in equal shares. After the death of either of them the surviving trustee would act in terms of the stipulations of the trust deed. The joint trustees would hold the trust properties in trust for such of their sons and/or son's sons and/or son's son's sons in such shares and in such manner as they jointly during their lifetime or after the death of either of them, the survivor shall by any deed or deeds with or without power of revocation and new appointment or by his or her Will appoint, and in default of such appointment for all their sons absolutely and in equal shares. By virtue of the power conferred by the said deed of trust dated 01.09.37, the joint trustees executed a deed of appointment on 28.12.56 appointing their two sons defendant No. 1, since deceased, and defendant No. 2 only subject to the life interest of the appointers, absolutely and for ever in respect of Calcutta and Jasidih properties (item Nos. 1 and 2 of schedule 'A') and disentitled their another son-the plaintiff Subol of any right, title or interest therein. After the death of Redheshyam on 25.06.62, the surviving trustee Sabitri similarly executed a deed of appointment on 17.12.62 appointing the said two sons defendant No. 1 and defendant No. 2 only, subject to the life interest of the appointer, absolutely and for ever in respect of Chinsurah property (item No. 3 of schedule 'A'), disentitling the plaintiff Subol of any right, title and interest therein. Sabitri died on 26.02.75. The said joint trustees instituted a suit being Suit No. 708/62 in this Court for eviction of the licensee - the plaintiff Subol from a portion of Calcutta property which was dismissed on 19.09.79 but ultimately set aside in appeal being Appeal No. 128/80 on 24.07.2003, and the SLP preferred against the said decree was dismissed on 19.09.2003.
10. Since the material facts in the present case are admitted and the present suit hangs upon construction of the deed of trust dated 01.09.37 and two deeds of appointment dated 28.12.56 and 17.12.62, no oral evidence was adduced on behalf of either of the parties.
11. Mr. Mitra, learned Counsel for the plaintiffs, relying upon the cases of Monohar Mukherjee v. Bhupendra Nath Mukherjee reported in 37 CWN 29 (FB), Patel Chhotabhai v. Gnan Chandra Basak reported in , Madhab Prasad v. Maniklal reported in AIR 1928 Bom 97 at 98 and Commissioner of Income Tax, Kanpur v. Kamala Town Trust reported in : [1996]217ITR699(SC) and on referring to Illustration (c) of Section 6 of the Indian Trusts Act, 1882 assailed the said deed of trust as invalid and void mainly on three-fold grounds viz (1) there is ambiguity and vagueness in respect of the beneficiaries, (2) there is no provision under the Hindu Law to bequeath something to an unborn person and it is contrary to normal rule of inheritance, and (3) the deed is hit by the Rule against perpetuity. Mr. Mitra contended that the power of revocation as per provision of Section 78(b) of the Trusts Act can be exercised only by the author of the trust and cannot be left to the trustees jointly, as has been done here and since the settlor did not exercise the right independently, it is hit by the said Illustration (c) of Section 6 of the Trusts Act. Mr. Mitra further contended that in view of the above grounds when the trust deed cannot be said to be valid, the two deeds of appointment which were executed on the basis of the said trust deed have no leg to stand on. Mr. Mitra argued that even if for argument sake the trust deed is considered to be valid, as the deed did not contain any revocation clause, the provisions of the trust could not be altered by the deeds of appointment and thus the trustees had no power to exclude one of the sons and they could at best determine the share of all the sons.
12. Mr. Bachawat, learned senior Counsel for the defendant Nos. 1 and 2, on the other hand, on drawing Court's attention to Clause (c) of the trust deed at page 2 contended that all the conditions of Section 6 of the Trusts Act having been fulfilled, and since the trust deed specifically provided right of revocation and right of appointment and when by virtue of such power of appointment the joint trustees and thereafter surviving trustee Subitri exercised that power appointing two sons defendant No. 1, since deceased, and defendant No. 2 in respect of the trust properties, the question of holding the trust deed or two deeds of appointment invalid does not arise. Mr. Bachawat, on referring the cases of Kameswar Pershad v. Rajkumari Ruttan Koer reported in 19 1A 234 at 237, Abhoy Kanta Gohain v. Gopinath Deb Goswami reported in : AIR1943Cal460 and Marwari Kumhar v. B.G. Ganeshpuri reported in : AIR2000SC2629 further contended that since the validity of the trust deed as also two deeds of appointment was challenged in the previous suit being No. 708/62 which was negatived by the Division Bench in appeal being 128/80 and similar challenge of the said deeds was rejected by the Executing Court which appointed receiver in the portion of the property and the heirs of Subol on the basis of undertaking made over possession of the said portion of the Calcutta property to his clients on 07.11.2004, the question of invalidity of the said deeds as agitated before this Court is barred by the principles of res judicata and constructive res judicata. The contention of Mr. Mitra in this regard is that as the issues were never decided, the question of application of the principles of res judicata and constructive res judicata does not arise, in support of which the case of Ragho Prasad Gupta v. Krishna Poddar reported in : [1969]1SCR834 was relied upon.
13. To start with, nowhere in the four-corners of the plaint, the plaintiff Subol challenged the validity of the trust deed, on the contrary, he supported and accepted the same and claimed to be a beneficiary along with defendant Nos. 1 and 2 but challenged the two deeds of appointment as null and void. Merely because the Court has been called upon to examine the scope and effect of the trust deed, it does not necessarily follow that it should run wild to consider a point for which there is not the slightest basis in the plaint and which runs counter to the pleadings and introduces a completely new and inconsisent case beyond the compass of the suit, since if the trust deed is assailed to be invalid, the question of the plaintiffs being a beneficiary along with defendant Nos. 1 and 2 being totally incompatible does not stand. It is well-settled that a case not specifically pleaded in the pleadings should be thrown away, and so on the aforesaid grounds there is no scope to take into account the above contention of Mr. Mitra relating to the alleged invalidity of the trust deed.
14. Still when it has been raised, let me dispose of the same.
15. It is the well-known rule of construction that the Court must construe an instrument, unless it is impossible to do so, to make it workable rather than to make it unworkable, and construction is to be made of all the parts together and not of one part only by itself.
16. One of the 'four certainties' of trust as per provision of Section 6 of the Trusts Act which deals with 'creation of trust' is that the beneficiary must be indicated and in such a way that the trust could be administered by the Court if the occasion so arises, as was held in the case of Patel Chhotabhai (supra). Illustration (c) of the said Section 6 of the Trusts Act is as follows:
A bequeaths certain property to B, requesting him to distribute it amongst such members of C's family as B should think most deserving. This does not create a trust, for the beneficiaries are not indicated with reasonable certainty.
17. In the case on hand, the trust was created in consideration of natural love and affection which the settlor had and bore for his wife Sabitri Seal and their children. A transfer cannot be made directly to an unborn person, for the definition of 'transfer' in Section 5 of the Transfer of Property Act is limited to living persons. Such a transfer can only be made by the machinery of trusts. It is intended to express this distinction by the words 'for the benefit of, as used in Section 13 of the said Act, that the trustees being transferees hold the property for the benefit of the unborn person. The estate must vest in some person between the date of transfer and coming into existence of the unborn person. Here, as provided in the trust deed, the joint trustees Radheshyam and Sabitri shall hold the trust property in trust for such of their son and/or son's sons and/or son's son's sons in such shares, if more than one, and in such manner as they jointly during their lifetime or after the death of either of them the survivor shall by any deed or deeds with or without revocation and new appointment or by his or her Will appoint, and in default of such appointment and so far as any such appointment shall not extend in trust for all their sons absolutely and in equal shares. A glance to the above would reveal that the joint trustees and the survivor were empowered to appoint by any deed or deeds or Will with or without power of revocation such of the sons and/or son's sons and/or son's son's sons as they or the surviving trustee may determine and that the beneficiaries were certain and specific. The very expression that 'the settlor had and bore natural love and affection for his wife and their children' denotes that sons were already born, and so the question of bequeath in favour of unborn person is out of the way.
18. The very expression 'and in such manner as they jointly during their lifetime or after the death of either of them the survivor shall by any deed or deeds with or without revocation and new appointment or by his or her Will appoint', as provided in Clause (c) of the trust deed and indicated above will reveal that the power of revocation relates to appointment and not to the trust deed, and so Clause (b) of Section 78 of the Trusts Act which deals with 'revocation of trust' otherwise created has no manner of application here. It would further appear from the above that the power of appointment does not hinge upon the exercise of power of revocation, and both are independent powers. There is nothing to suggest in the present case that the said power of revocation was ever exercised either by the joint trustees or by the surviving, trustee.
19. The rule against perpetuity is founded on the general principle of policy guiding Judges that the liberty of alienation shall not be exercised to its own destruction, and that all contrivances shall be void which tend to create a perpetuity or place property for ever beyond the reach of the exercise of power of alienation. A perpetuity, in the primary sense of the word, is a disposition which makes property inalienable for an indefinite period. In this sense, it is concerned with certain interests created in presently which are sought to be made inalienable for an indefinite period. In its modern sense, it is concerned with interest arising in future, and not with interest arising in present. Section 14 of the Transfer of Property Act deals only with the modern rule against perpetuities which is thus enunciated in Jarman on Wills, 8th Edition, Vol. I, page 304:
Subject to the exceptions to be presently mentioned, no contingent or executory interest in property can be validly created, unless it must necessarily vest within the maximum period of one or more lives in being and twenty-one years afterwards.
20. So long as the transferees are living persons, any number of successive estates can be created. A transfer may be made to A for life, and then to B for life and then to C for life, and so on, provided A, B and C are all living persons at the date of the transfer. However, if the ultimate beneficiary is someone not in existence at the date of the transfer, Section 13 requires that the whole residue of the estate should be transferred to him. If he is not born before the termination of the last prior estate, the transfer to him fails under this section. If he is born before the termination of the last prior estate, he takes a vested interest at birth and possession immediately on the last prior estate. In the case on hand, on the date of creation of the trust, sons were already born and the joint trustees and/or surviving trustee were empowered to appoint sons and/or son's sons and/or son's son's sons by deed or deeds or Will as they or surviving trustee may determine. Accordingly, the rule against perpetuity, as embodied in Section 14 of the Transfer of Property Act does not apply in the present case. As such, the question of the trust deed being invalid and void, as contended by the learned Counsel for the plaintiffs, does not arise at all.
21. It would appear from the above that default clause could raise its head only if there was no appointment by the joint trustees or surviving trustee. The words 'such of the sons in such shares, if more than one' as used in Clause 'C of the trust deed denote that it was within the power of the joint trustees and surviving trustee to select beneficiary/beneficiaries amongst their sons. Since by virtue of the said provision of the trust deed the joint trustees exercised their power and appointed their two sons viz defendant No. 1 Parbati Sankar Seal, since deceased and defendant No. 2 Hiralal Seal only in respect of Calcutta and Jasidih property by deed of appointment dated 28.12.56 and thereafter the surviving trustee Sabitri similarly appointed by the deed of appointment dated 17.12.62 the said two sons Parbati and Hiralal in respect of Chinsurah property and specifically disentitled the plaintiff Subol, since deceased, of any right, title and interest in those properties, there was nothing wrong in the said two deeds of appointment. The said two deeds of appointment are quite legal and valid, and accordingly the plaintiff Subol was neither a beneficiary nor had acquired any right, title and interest in any of the said three properties. The decisions so referred to by the learned Counsel for the plaintiffs being distinguishable cannot be said to have any application in the present case.
22. As regards plea of res judicata, though no issue in this regard was framed, as it is a mixed question of law and facts and material facts in this case are undisputed, argument was advanced by the learned Counsel of both the parties.
23. The doctrine of res judicata embodied in Section 11 of the Civil Procedure Code contains the rule of conslusiveness of the judgment which is based partly on the maxim 'Interest reipublicae ut sit finis litium' (i.e. it concerns the State that there be an end to law suits) and partly on the maxim 'Nemo debet bis vexari pro una at eadem cause' (i.e. no man should be vexed twice over the same cause), as was held in the case of Deva Ram v. Ishwar Chand reported in : AIR1996SC378 . The application of the rule should be influenced by no technical consideration of form but by matter of substance within the limiits allowed by law, as was held in the case of Kalipada De v. Dwijapada Das reported in 34 CWN 201 at 206 (P.C.). A matter which might and ought to have been made a ground of attack or defence in the former suit but which was not done so by any of the parties, will also be deemed to have been a matter directly and substantially in issue in such suit, and the rules of res judicata will equally apply to it. Such a matter is regarded as having been constructively in issue and since the parties had an opportunity of putting it forward, it is considered as having been actually controverted and decided.
24. Here, in paragraphs 10 and 11 of the additional written statement filed by the defendant Subol in the earlier suit, the two deeds of appointment were asserted to be sham and colourable documents and the deed of trust as void. Though issue No. 3 i.e. whether after death of the joint trustees the trust properties vested in the three sons of the trust and whether the defendant Subol is a beneficiary was kept open, and issue No. 4 i.e. whether the trust deed is void was not answered being not required, the learned Court of Appeal rejected the plea in short and allowed the appeal, and the SLP preferred against the said judgment was dismissed. It is not necessary that there should be an express finding on the issue in question and it is enough if an adjudication necessarily involves a finding on the issue i.e. where a question has been necessarily decided in effect though not in explicit terms which is well-settled. In this connection, the cases of Apurba Krishna Roy v. Shyama Ch. Paramanik reported in 24 CWN 223 at 225 and Nikunja v. Jatindra reported in : AIR1956Cal613 may well be referred to. Therefore, so far as the issue relating to the alleged invalidity of the trust deed is concerned, it is barred by the principles of res judicata and as regards the two deeds of appointment, it is barred by the principles of constructive res judicata. In the case of Ragho Prasad Gupta (supra) so referred to by the learned Counsel for the plaintiffs, it was held that the expression of opinion of the Court while dismissing an application of the appellant that he would not be bound by the decree in the proceeding did not operate as res judicata, as that question was not in issue before the Court, which is not the situation here. As such, the said decision is of no aid to the plaintiffs.
25. In the premises, let me hasten to sum up that the trust deed and also the two deeds of appointment are quite legal and valid, that the plaintiff Subol, since deceased, was neither a beneficiary nor he acquired any right, title and interest in the trust properties, and as such the plaintiffs are not entitled to get and relief whatsoever, and the present suit deserves to be dismissed.
26. All these issues are as such answered against the plaintiffs.
27. The suit is, accordingly, dismissed.
28. I make no order as to costs.
29. Department and all parties are to act on a signed copy of the operative part of the order on the usual undertakings.
30. Urgent xerox certified copy of this judgment, if applied for, be supplied to the parties as expeditiously as possible.