OFFICIAL TRUSTEE, WEST BENGAL & ORS. versus SACHINDRA NATH CHATTERJEE & ANR.

OFFICIAL TRUSTEE, WEST BENGAL & ORS.

SACHINDRA NATH CHAITERJEE & ANR.

December 13, 1968

[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.J

Trust-Settlor as trustee reserving power to alter terms by will-I/ trustee could alter b,v deed inter vivos--Jndian Trusts Act (2 of 1882) s. 34, Official Trustees Act (2 of 1913), s. 10(1) and Trustees and Mort: gagees Powers Act (28 of 1866), s. 43-Scope of-Judge of High Court on Original Sidt of Calcutta High Court-Powers under Chap. 13 of the Original Side Rules-Inherent powers-Scope of--Official Trustee-Liability for accounting.

The father of the first respondent executed trust deed in 1930, in respect of properties owned by him. The deed provided litter <ilia, that the settlor would be trustee during his life time, that from and after his death, his wife should be paid Rs. 50 per mensem from the profits of the trust estate, that the balance of the income was to be paid in equal shares to the sons of the settlor, and that after the wife's death, the whole estate was to be made over to the settlor's sons in equal shares. The settlor reserved to himself the power to vary the q~antum of interest, given to each of the beneficiaries after his death by will alone and in no other way. After administering the trust for some time he wanted to make some changes in the trust deed, and for this purpose took out an originating summons on the original side of the Calcutta High Court, under Ch. 13 of the Original Side Rules and prayed for two reliefs, namely, (i) to have the Official Trustee appointed as the trustee in his place, and (ii) to empower the settlor to alter the clause relating to variation of the quan· tum of interest by deed inter vivos. The first respondent did not appear in those proceedings though notice was served on him. The High Court, in specific terms, wanted the prayers. The settlor then executed another trust deed in 1938 under which the first respondent was deprived of all his interest in the corpus of the trust properties and was given meagre allowance of Rs. 20 per mensem. The Official Trustee earned out the order of the High Court and disbursed the income to the various beneficiaries. In 1950, after the death of the settlor, the first respondent filed suit and prayed : ( i) that thei power resen-.d to the set ti or in the original trust deed for altering the quantum of interest by will alone, was irrevocable; (ii) that the order on the originating summons was null and void as having been made without jurisdiction; (iii) that the plaintiff was entitled to the benefits provided by the original deed; and (tv) that the Official. Trustee should render accounts since the time of the death of the settlor.

The trial court decreed the suit but the first appellate oourt reversed the decree. In second appeal, the High Court restored the decree of the trial court.

In appeal to this Court, on the questions : (I) Whether the settlor was entitled to execute the second trust deed; (2) Whether its validity was not open to challenge in view of the order on the originating summons, be-cause, the Judge had jurisdiction to pass the order eit!'er under s. 34 of the Indian Trusts Act, 1882, ors. 10(1) of the Official Trustees Act, 1913, or s. 43 of the Trustees and Mortgagees Powers Act, 1866, or in

exercise of bis inherent powers; and (3) Whether the Official trustee was liable to render accounts and if so for what period.

HELD : (I) The stipulation in the trust deed that the variation can only be made by will Gnd not otherwise is binding condition. Being material condition the settler bad no power to vary it and therefore had no power to execute the second trust deed. [98 Fl

Re : Anstis [1886] 31 Cb. D. 596; Reid V. Shergo/d (1805) 10 Ves. 370 and Mo/ineux v. Evered, (1910) 2 Cb. 147, applied.

Halsbury 3rd Edn. Vol. 30 p, 272, para. 518 and Hcnbury Modern Equity (7 Edn. p. 56), referred to.

(2) Before court can be held to have jurisdiction to decide parti-cular matter it must not only have jurisdiction to try it but must also have the authority to decide the questions at issue and pass appropriate orders. It is not sufficient that it has some jurisdiction in relation to the subject-matter under the various provisions of law or under its inherent power. If the High Court had the power under those provisions of law or in its inherent jurisdiction the fact that they were not invoked by the petitioner in the originating summons would not invalidate the order even if it was Wrong. But the order on the originating summons in the present case was outside the jurisdiGtion of the Judge. It was not merely wrong order, or an illegal order; it was an order which he had no competence to make and was therefore void order. [IO! B-D; 106 C-DJ

lttavira Mathai v. Varkey Varkey, [1964] I S.C.R. 495, referred to. Hirday Nath Roy v. Ramchandra Barna Sarma, I.LR. LXVIII Cal. 138. approved.

(a) The facts stated and the nature of rellef asked for in the origina-E ting summons, show that the matter did not come within the scope of s. 34 of the Trusts Act. The jurisdiction of the Court under the section is limited jurisdiction. The $tatute has p'rescribed what the Court can do and inferentially what it cannot do. Under the provision, the Court could onlv _give 'opinion, advice or direction on any presented question respecting the management or administration of the trust property' and not on any other matte'r arising under the trust deed. The relief prayed for bv the settler did not relate to ~be management or administration of the trust propertv. [101 G; ·102 A-DJ

(b) Section 10(1) of the Official Trustees Act, 1913, might have empowered the High Court to appoint the Official Trustee in the place of the settler, as the settler was not willing to continue as trustee. But it could not have ~ranted the other reliefs asked. for. [102 GJ

. _( c) Section 43 of the Trustees and Mortgagees Po~ers Act, 1866. is stmilar to s. 34 of the Trusts Act. Under that proviston, Judge of High Court could have only given opinion, advice or direction on any question respecting the management or administration of the trust pro· perty and therefore, the order on the originating summons could not be justified on the basis of the section. [103 DJ

( d) There is no rule in Cb. 13 of the Original Side Rules of the Calcutta High Court, under which the order on the originating summons could have been made. It is not as if the Judge, in passing his order on the originating summons, was merely interpreting the original trust deed in which case it might not have mattered whether his interpretation was correct or not. [I 04 A-CJ

It may be that Judge sitting on the .original side of the High Court has all the powers of Chancery Judge 1n England, but the inherent ~owers of Chanc:ery Judge only relate to management and administra-tion of trust property which powers are similar lo those c0dified in s. 34 of the Trusts Act and s. 43 of the Trustees and Mortgagees Powers Act and is therefore of limited character. [105 G-H; 106 A] '

Chapman v. Chapman, [1954] A.C. 429 and Chapman's case, [1953] Ch. 218, referred to.

(3) But for the order on the originating summons the settlor would have certainly altered by will the quantum of interest given lo the first respondent. The first respondent did not challenge the second trust deed durin~ the father's life-time and there was no knowing that he would have challenged it till he filed the suit. Since the Official Trustee merely carried out the order of the Court, he is not a. trustee de-son-tort and bis liability should not be ~eater than that of trustee. Therefore, there is nO iustification for directing him to account from the date be took charge of the trust estate, and the ends of justiC'e would be met, if accounting was ordered as from the date of suit. [106 D-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 168 of 1966.

Appeal from the judgment and decree dated December 22, 1960 of the Calcutta High Court in Appeal from Appellate Decree No. 701 of 1956.

B. Sen, P. K. Chatterjee and P. K. Chakravarti, fo.. the appellants. ,

N. C. Chatterjee and D. N. Mukherjee, for respondent No. 1.

The Judgment of the Court was delivered by

Hegde J. Two important questions of law arise for decision in this appeal, by certificate. It will be convenient to formulate those questions after we set out the material facts.

One Aswini Kumar Chatterjee (since deceased) executed the Trust deed Exh. 1 on December 6, 1930 in respect of some of the properties owned by him. It is provided therein (a) that the settlor would be the trustee of the Trust Estate and would enjoy the income and profits of the trust praperties during his lifetime, (b) after his death his wife Sm. Santtmoyee Devee and/ or his SOill5 as soon as they or any of them attain the age of majority sh·:>uld be the sole Trustee or Joint Trustees and ( c) from and after his death the said Trust Estate should be held to the use and for the benefit of the said Sm. Santimoyee Devee and the said sons. Santimoyee Devee to be paid from the income and the profits of the said estate Rs. 50 monthly and the balance of the income and profits of the Trust Estate to be held for the use imd benefit of each of the sons in equal shares and after the death of the said Santimoyee Devee to make over the whole of the Trust Estate to each of the sons in: equal shares. He reserved to

himself the .power to vary the terms and conditions of the Trust so far as they relate to the quantum of interest given to each of the beneficiaries after the death of the settlor "by his instrument by will alone and in no other way or act".

The settlor administered the trust property for sometime and thereafter thought of effecting by deed inter vivos certain changes in the trust. To enable him to do so he took out an originating summO!ls on the original side of the Calcutta High Court under Chapter XIII of the Original Side Rules of that Court seeking primarily two r~liefs viz., ( 1) to have the Official Trustee, Bengal appointed as the Trustee in his place and (2) to empower him to ·alter the clause relating to variation of the ituantum of interest given to each of the beneficiaries by deed inter vivos. From the averments made in the application, it is clear that relief was sought under the provisions of the Indian Trusts Act (Central Act 2 of 18 8 2) and the Official Trustees Act (Central Act 2 of 1913). In the body of the petition the settlor -definitely prayed for permission to revoke the clause in I> the trust deed relating to his power to vary the quantum of interest of the beneficiaries by will alone and in its place authorise him to make that variation "by deed inter vivos and not by will alooe". The relevant reliefs asked for in the petition read as follows:

( 1 ) "that the provisions contained in the Deed of settlement dated the 6th December 1930 whereby the persons therein named were appointed Trustees of the said Trust Estate and whereby power was reserved to petitioner to alter the said quantum of interest by will alone and in no other way be revoked and . . .

(2) that the petitioner be empowered to alter the said quantum of interest in such manner as he may think proper, by deed inter vivas and not by will alone."

The: aforementioned originating summons was tak~n out on August 20, 1937. The matter came up for hearing before Ramfry J. evidently after service of notices on the respondents on August 25, 1937. On that date the learned Judge passed the following -order :

"It is ordered that the provisions cQ!lllained in the said Deed of Trust whereby the persons therein named were appointed Trustees of the said Trust Estate and whereby power was reserved to the said applicant to alter the quantum of interest of the beneficiaries by will and in no other way be and they are hereby

revoked and it is further ordered that the said appli-cant as such settlor as aforesaid be at liberty to alter the said quaintum of interest in such manner as he may think proper by deed inter vivos and not ~ will and it is further ordered th!!_t the said applicant the present sole trustee under the said Deed of Trust be and is hereby discharged from further acting as such Trustee and the Official Trustee of Bengal be and is hereby appointed the sole trustee of the said Deed of Trust. And it is further ordered that the stocks and shares llilld securities· 'cboth movable and lliimovable) now comprised in the Trust Estate. . . do vest in the said Official Trustee of Bengal as such Trustee as aforesaid."

At this stage it is necessary to emphasize that what the •1lttlor asked for was the court's permission to revoke the clause in the Trust deed empowering him to alter the quantum of interest given to each of the beneficiaries "by will alone" and in its place to confer upon him· power to make the said alteration by deed inter vivas. The court in specific terms ordered the revocation and granted the authority sought for. Acting under the power purported to have been given by the order of R:amfry J., the settlor executed second Trust deed on March 22, 1938. Under that deed, in the. place of the Trustees nominated under the original deed, the Official Trustee was constituted as the sole trustee. Sac~dra, (the first respondent herein) one of the sons of the settlor was deprived of all his interest as bineficiary in the corpus of the trust properties. He was given meagre allowance of Rs. 20 per month during his life-time. The settlor died in 1946. On December 18, 1950, the first respondent filed the suit out of which this appeal has arisen praying for following declarations :

(a) that the power reserved by the settlor in the original Trust deed for altering the quantum of interest of the bene· ficiaries by wiM alone and by no other means was irrevocable; . (b) that the order passed by Ramfry, J. on August 25, 1937 was null and void as having been made without jurisdiction; and ( c) the origi;nal Trust deed stood unaffected by the second Trust deed and therefore he was entitled to the benefits provided under the said deed. He also asked for decree directing the Official Trustee to pay him 1I4th of the income of the Trust Estate, so long as Santimoyee Devee was alive and on her death to make over one.fourth of the corpus of the. Trust Estate to him and further render accounts to him of the profits of the Trust Estate since the time of the death of the settlor. The Official

Trustee as well as some of the other defendaints resisted the suit. They contended that the settlor was entitled to execute the second Trust deed in exercise of the power reserved by him under the original Trust deed and in any event he could do so' because of the order of Rarnfry, J.

The trial court decreed the suit as prayed for but the first Appellate Court reversed the decree ot the trial court and dis-missed the suit upholding the contentions advanced on behalf of. the contesting defendants. In second appeal the High Court reversed the decree of the first Appellate Court and restored the decree of the trial .court. '

Two questions that arise for decision in the appeal are : (1) whether the settlor was entitled to execute the second Trust deed in pursua;nce of the power reserved by him under the original Trust deed and (2) whether in any event the validity of the second Trust deed is not open to challenge in view of the order made by Ramfry, J. on August 25, 1937.

Mr. B. Sen, learned Counsel for the appellant CQntended that on proper reading of the Trust deed it would be seen that the settlor had reserved to himself the power to vary the terms of the Trust in so far as they relate to the quantum of int.,rest given to each of the beneficiaries after the death of the settlor. According to him the recital in the deed that such variation can be done only by an instrument of will and not otherwise i& not matter of substance but only form. Therefore we must hold that the settlor had the power to make the variation in question. He did not dispute the proposition that settlor is incompetent to vary any of the terms of Trust settled by him unless he had reserved for himself the power to make the variation in question. The real questiqn for decision is whether the stipulation in the Trust deed that the . variation in question can only be made by will and not otherwise is binding condi-tion. If it is held to be material condition then the settlor must be held to have had no power to vary the same.

The law on the point is stated by Halsbury (') thus :

"Defects not of the essence. Equity relieves only against defects which are not of the essence of the power; relief will not be granted so as to defeat any-thing material to the intentio.n of the donor of the power. Thus mere defects in the mode of execution will be aided, and so will an appointment by will made under power to appoint only by deed. But no aid will be given to an appointment by irrevocable deed made . under_ power to appoint only by will or to an 3rd Edn. Vol. 30 p. 272 Paragraph, 518.

appointment which would result in fraud on the power or aid breach of trust. Moreover, no aid will ~e given to ~e .e~ercise by will of power of revoca-tion by deed If It Is clear that deed is of the essence, .lls where the original power of appo~tment was by will or deed and on its exercise power to revoke by deed only was reserved. Nor will the court aid lease containing unusual covenants granted under power to lease with usual covenants, or lease granted with-out conseint under power to lease with consent, or • sale of land reserving timber made under power not authorising such reservation, or sale of land reserving the minerals under power not authorising such reservation."

Similar are the views expressed in Hanbury's book o,n, Modern Equity (7th Edn. p. 56). Referring to the decision in Toilet v.Tollet(') the learned author observes :

"The case brin~ out another important point. The power was exercised by will, whereas it should have been exercised by deed. Now Will is revocable at any time during the testator's life time, and so the defect is treated as one of forni only, and relief wi!J be granted. But the defect constituted by the converse process, the attempted exercise by irrevocable deed of power which should have been exercised by will is treated as matter of substance, and, in .Reid v. Shergold(') as fatal to the objects of the power."

The law is similarly stated in M olineux v. Evered('). From the above discussion it also follows that the settlor had no power to appoint new trustees during his life time nor designate persons other than those already designated in the original Trust deed to act as trustees after his life time. Considerable arguments were advanced before us as to the effect of the o;der made by Ramfry, J. on August 25, 1937. On behalf of the appellant it was urged that Ramfry, J. had juris-diction over the parties to the application in question as well as on the subject matter. Hence the validity of the order made by him cannot be challenged even if it is held that that order is not m accordance with law. To put it differently it ~as. ~q~ed that what could be complained of is not the lack of 1unsd1c!lon on the part of the court to make the order in question but ain illeg"l exercise of that juris.diction; but such an .attack cannot be made against that order m collateral proceedn;gs. On the other hand it was urged by Mr. N. C. Chatteriee, learned (1) (1728) 24 E. R. 828. (2) [1805] 10, Yes. 370. (3) [1910] 2 Ch. 147.

Counsel for the respondents that Ramfry, J. had no jurisdiction to pass the order in question. His grievance was not that Ramfry, J. exercised his undoubted jurisdiction illegally but that he had no jurisdiction at all to make the order in question.

It is plain that if the learned judge had no jurisdicti~ to pass 11 the order in question then the order is null and v01d. It 1s equally plain that if he had jurisdiction to pronounce on the plea put forward before him the fact that he made an incorrect order or even ain illegal '>rder cannot affect its validity .. T~e~e­fore all that we have to see is whether Ramfry, J. had 1unsd1c-tion to entertain the application made by the settlor.

What is meant by jurisdiction? This question is answered by Mukherjee, Acting C. J. speaking for the Full Bench of the Calcutta High Court in Hirday Nath Roy v. Ramachandra Barna Sarma.(') At page 146 of the report the learned judge explai4ted what exactly is meant by jurisdiction. We can do no better than to quote his words :

"ln the order of Reference to Full Bench in the case of Sukhlal v. Tara Chand(') it was stated that jurisdiction may be defined to be the power of Court to hear and determine cause, to adjudicate and exercise any judicial power in relation to it : in other words, by jurisdiction is meant the authority which Court has to decide matters that are litigated before it or to take cognizance of matters presented in formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction', which has been stated to be 'the power to hear and determine issues of law and fact', 'the authority by which the judicial officer take cognizance of and decide causes'; 'the authority to hear and decide legal controversy', 'the power to hear and determine the subject matter in contro-versy between parties to suit and to adjudicate or G. exercise any judicial power over them;' 'the power ~ hear, determine and pronounce judgment on the 1ss~es ~efore the Court'; 'the power or authority which 1s conferred upon Court by the Legislature to hear and determine causes between parties and to .carry the judgments into effect'; 'the power to enquire 1.nto the facts, to apply the law, to pronounce the Judgment and to carry it into execution'. (emphasis supplied).

(I) LLR. l.XVIII Cal.138.

Proceeding further the learned judge observed :

"This jurisdiction of the Court may be ':bialified or restricted by variety of circumstances. us, the jurisdiction may have to be considered with reference to place, value and nature of the subject matter. The power of tribunal may be exercised within defioed territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of specified character, for instance, testamentary or matnmonial causes, acquisition of lands for publi~ purposes, record of rights as between landlords and tenMlts. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject matter is obviously of fundamental character. GivQR such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction : for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject matter, the decision of all other questions arising ill the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of Court or . the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes question of great nicety, as is illustrated by the decisions reviewed in the order of reference ~n Sukhlal v. Tara Chand(') and Khosh Maha-med v. Nazir Mahomed(2) see also the obser-vation of. Lord Parkar in Raghunath v. Sundar Das(') .... We must not thus overlook the cardinal position that in order that jurisdiction mav be exercised, there must be case legally before the Court and hearing as well as determination. judgment pronounced by court without jurisdiction is void, subject to the well-known reservation that, when the jurisdiction of Court is challenged, the Court is competent to deter-mine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it : Rashmoni v. Ganada. (')" (emphasis supplied).

(2) (1905) I.LR. 33 Cal. 352.

(I) [1905] I.LR. 33 Cal. 68.

(4) [19141 20 C.L.J. 213.

(3) [[1914] ][l.L.R.42Cal. 72. ]

Finally the learned judge quoted with approval the decision of Srinivas Aiyangar, J. in Tuljaram v. Gopala(') wherein Aiyangar, J. laid down that "if Court has jurisdiction to try suit and has authority to pass orders of particular kin/!, the fact that it has passed an order which it should not have made in the circumstances of the litigation, does not indi-cate total want or loss of jurisdiction so as to render the order nullity". (emphasis supplied) . From the above discussion it is clear that before Court can be held to have jurisdiction to decide particular matter it must not only have jurisdiction to try the suit brought but must also have the authopty to pass the orders sought for. It is not suffi-cient that it has some jurisdiction in relation to the subject matter· of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the par-ties. Therefore the fact that Ramfry, J. had jurisdiction to pass certain orders either under the Indian Trust Act, 1882 or under the Official Trustees Act, 1913 or under the Trustees and Mortgages Powers Act, 1866 or under his inherent power is not conclusive of the matter. What is relevant is whether he had the power to grant the relief asked for in the application made by the settlor. That we thillk is the essence of the matter. It cannot be disputed that if it is held that the learned judge had competence to pronounce on the issue presented for Iris decision then the fact that he decided that issue illegally or incorrectly is wholly beside the point. See lttavira Mathai v. Varkey Varkey and Anr.([2]). Therefore we have now to see whether the learned judge had jurisdiction to decide the issue presqnted for his determination. The relief prayed for as seen earlier, was to permit the settlor to revoke particular' clauses in the Trust deed and to authorise him to alter the quantum of inerest given to each of the beneficiaries by deed inter vivos. Had the learned judge jurisdiction to entertain those pleas?

Reliance was placed on s. 34 of the Indian Trusts Act, 1882 as conferrinl!: power on the judge to make the order in question. That section reads :

"Any trustee may, without instituting suit, apply by petition to principal Civil Court of original juris-diction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than ques-?ons of ~~tail, difficulty or importance, not proper m the opmmn of the Court for summary disposal."

Under this provision the court could have only given "opinion, advice or direction on any presented question respect-ing the management or administration of the trust property" and not on any other matters. The relief prayed for by the settlor did not relate to the management or administration of the trust property but on the other hand it asked for authority to alter 1he quantum of interest given to each of the beneficiaries by deed inter vivas. Th~ jurisdiction conferred on the court under s. 34 is limited jurisdiction. Under that provision, the court has not been conferred with overall jurisdiction in matters arising under Trust deed. The statute has prescribed what the court cam do and inferentially what it cannot do. From the fact that the court has been conferred power to grant only certain reliefs it follows as matter of law that the court has been prohi-bited from granting any other relief. The jurisdiction of the court is circumscribed by the provisions of s. 34 of the Trusis Act. The court had no jurisdiction to pronounce on the pleas put forward by the settlor. From the facts stated in the petition lnd from the relief asked for, it was obvious that the case did not come within the scope of s. 34 of the Trust Act. Therefore when the learned judge granted the relief asked for, he did something which he wJs not competent to do under s. 34 of the Trusts Act.

Next we were told the learned judge had jurisdiction to pass the order in question under s. 10 (1) of the Official Trustees Act, 1913 which reads :

"If any property is subject to trust other thain trust which the Offi.;ial Trustee is prohibited from accepting under the provisions of this Act, and there is no trustee within the local limits of the ordinal)' or extraordinary original civil jurisdiction of the High Court willing or capable to act in the trust, the High Court may on application make an order for the appointment of the Official Trustee by that name with his consent to be the trustee of such property."

This provision has no relevance as regards the controversy with which we are dealing. That provision might have empowered the court to appoint the Official Trustee in the place of the settlor as the settlor was not willing to continue --as the trustee. But it could not have granted the other reliefs asked for.

Reliance was next placed on s. 43 of the Trustees and Mortgagees Powers Act, 1866. There is no reference to this Act in the application made by the settlor. Obviously he did not rely on any of the provisions in that Act. But then if the court couM

have acted on the basis of a11y of the provisions in that Act, the fact that it did not purport to act under that provfaion is immaterial. Therefore we have to see whether the court could have acted on the basis of any of the provisions in the said Act. The only provision of that Act on which reliance was placed on behalf of the appellants is s. 43 ( 1). The portion cf that section relevu.nt for our present purpose reads : "Any trustee, executor or administrator shalJ be at liberty, without the institution of suit, to apply by petition to any Judge of the High Court for the opinion, advice or direction of such Judge on any question respecting the management or administration of the trust property or the assets of any testator or . intestate ... " This provision is more or less similar to s. 34 of the Trust Act. Under that provision judge of High Court could have only given opinion, advice or direction on ainy question respect·· ing the management or administration of the trust property. Therefore the order made by Ramfry, J. cannot be justified on the basis of s. 43 of the Trustees and Mortgagees Powers Act, 1866.

It was then said that the order -n question could have been made by Ramfry, J. in the exercise of his i,nherent powers as judge sitting on the original side of the Calcutta High Court. It was argued that judge sitting on the original side of the High Court of Judicature at Calcutta has all the powers of Chancery .T udge in England as that power has been conferred on him by the Letters Patent granted to that High Court. We shall assume it to be so. We may note that the settlor did not invoke th~ inherent jurisdiction of the Court nor did the .iudge purport to exercise that power. But, still, that cannot invalidate the order made i;f the court had the inherent jurisdiction to make that order. Hence the real question is had he that inherent jurisdiction? Chapter XIII of the Calcutta High Court Rules prescribes what orders can be obtained in an originating summons proceedings. The jurisdiction of the judge acting under that Chapter is s1immary jurisdiction. Rule I of that Chapter empowers the judge to entertain an application in respect of matters enumerated in clauses (a) to ( g) of that rule. Admittedly els. (a) (b), ( f) and ( g) are not rele'fant for our pre5ent purpose. Under cl. ( c) the tourt could only decide ab~ut furni!hing of any particular accounts by trustees and vouchmg (where !necessary) oi such accounts. Under cl. ( c) it could direct the trustees to pav into court any monies in his hands and under cl. ( e) direct him to file an account and vouch the same to do or abstain from dok1g any particular acr in h;s character as trustee. The orders under ·

Ch. XIII are made in chambers. As mentioned earlier the pro-ceedings under that Chapter are summary proceedings. No rule in that Chapter was brought to our notice under which the !.• order ~n question could have been made.

Different questions might have arisen for consideration if an application under rule 9 of Chapter XIII had been made ' requesting the High Court to interpret the original Trust deed in particular manner. Such plea was not takqn in the applica-tion filed by the settlor before Ramfry, J. Further it was not the case of the appellant either in the High Court or in the courts · . , below or even in this Court that Ramfry, J. merely purported to interpret the original Trust deed whether his interpretation is <:orrect or not.Let us now proceed to the questio.n whether the Chancery Court in England had jurisdiction (o pass an order similar to that made by Ramfry, J. This question was elaborately considered by the House of Lords in Chapman and Ors. v. Chapman and Ors.('). The leading judgment in that case was delivered by Lord Morton of Henryton. In his speech he elabo-rately considered the various decisions rendered by the English courts. The broad question that he posed for decision was whether the court could permit the settlor to alter the terms of trust and if so in what respect. It was urged before him on behalf of the. appellants in that case that the court had jurisdic: tion to permit the alteration of any of the terms of trust. Negativing that contention his Loi:dship observed at p. 456 :

"Striking instances of cases which negative the existence of the alleged, unlimited jurisdiction are In re Crawshay,([2 ]) In re Morrison(') (Buckley, J.) and Jrt re Montagu(') (Court of Appeal). In the first of these cases North, J. said: 'I should not be administer-ing the trusts created by the testator if I consented to this scheme. I should be altering his trusts and substi-tu1 ing something quite outside the will. On the assumption that the scheme would be beneficial to the estate I cannot decide that I have jurisdiction to authorise it.' In the last mentioned case the Court of Appeal held that it had no jurisdiction to allow the tru>tees of settlement to raise money by mort-gage of the settled estate and to apply it in pulling down and rebuilding some of the houses on the property. Lindley, L. J. said : 'We none of us see our

(2) 60L.T.357.

'(l) [1954] A.C. 429.

. (4) [1897) 2 Ch. 8.

·(3) (1901] I Ch. 101.

way to hold that there is jurisdiction to make an order in this case. It is very desirable that the court should have jurisdiction to deal with such case; but Parlia-ment has never gone so far as to give it that jurisdic-tion. No doubt it would be judicious thing to do what is wanted in this case, and if the persons interested were all ascertained ailld Otf age, they would probably concur, and then it might be done; but they are not all ascertained nor of full age; and unless the court can authorize the trustees to do it, it cannot be done.' Lopes, L.J. said: 'I have no doubt that what is proposed is berieficial and would increase both the income and the capital value of the property. The question is whether the court has jurisdiction to sanc-tion it. There is no provision in the settlement which would authorize the works in question, nor do they fal! within any of the improvements sanctioned by the Settled Land~ Act.''

From the above observations it is clear that the learned judge proceeded on the basis that the court has no jurisdiction to permit the alteration of any of the terms in trust deed excepting as regards the following matters :

(a) Changes in the nature of an infant's property e.g. by directing investment of his personalty in the purchase of freeholds;

(b) Allowing the trustees of settled property to enter into some business transaction which was not autho-rized by the settlement;

( c) Allowing maintenance out of income which the settlor or testator directed to be accumulated; and

( d) Approving compromise on behalf of infants and possible after-born beneficiaries.

It wilI be noticed that the power given under those four heads are those relating to management and administration of trust property. That power is similar to the power cont erred on courts by s. 34 of the Trusts Act and 43 of the Trustees and Mortgagees Powers Act, 1866. In fact in this country we have codified the very powers that were exercised by the Chancery Courts in England under their equitable jurisdiction. The Court of Appeal in Chapman's case(') Evershed, M.R. and Romer L.JJ., Denning, L.J. dissenting stated the law on the point thus :The inherent jurisdiction of the Court of Chancery is of limited character. It is jurisdiction to confer upon the trustee,. quoad items of trust property vested in them, administrative powers to be exercised by them where situation has arisen in regard to the property creating what may be fairly called an 'emergency'. The inherent jurisdiction does not extend to sanc-tioning generally the modification or remoulding of the ben~-ficial trusts of settlement.

Hence we are not persuaded that the Chancery Court ~n England had jurisdiction to pass orders similar to that passed by Ramfry, J.

From whatever angle we may examine the validity of the order made by Ram fry, J ., it appears clear to us, that the said order was outside the jurisdiction of the learned judge. It was not merely wrong order, or an illegal order, it was an order which he had no competence to make. It is not merely an order that he should not have passed but it is an order that he could not have passed and therefore void order. The circumstances of the case call for certain modifications in the decree of the High Court. On the facts of this case we see no justification for treating the Official Trustee as trustee de-son-tort and to require him to account as such. Jn the proceed-ings before Ramfry, J. the plaintiff did not choose to appear and contest. It is not his case that he was not served in that proceed-ding. But for the order of Ramfry, J. the settlor would have certainly altered the quantum of interest given to the plaintiff under the original Trust deed by means of will. As it now turned out the plaintiff has benefited by the wrong step taken by the settlor. The Official Trustee has merely carried out the order of the court. It was not open to him to go behind that order That being so we see no justification to treat him as trustee de· son-tort. Equity requires that he should be made to account as if he was trustee. In other words his liability should not be greater than that of trustee. It is also proper to permit him to reimburse himself all the costs incurred by him in all the courts from out of the trust funds in his hands.

We see no justification for allowing accounting in this case from the date the official Trustee took charge of the trust estate. Till the institution of the present suit from which this appeal has arisen there was no knowing that the plaintiff would challenge the second Trust deed executed by his father. He did not challenge it during his father's life time. On the faith of the order of the High Court, the Official Trustee must have been disburs-ing the trust income to the various beneficiaries. It will be inequitable to reopen all those transactions. We think the ends

OFFICIAL TRUSTEE v. SACHINDRA NATH (Hegde, J.) IO'i

of 1ustice will be met if accounting is ordered as from the date of the institution of the present suit. The plaintiff-respondent i' entitled to his costs in all the courts. But he shall get the same from out of the Trust Estate.

Subject to the modifications directed above in the decree of the High Court this appeal is dismissed.

Appeal dismissed and decree modified.