Law Governing Execution of Trusts

Shanti Vijay & Co. Etc vs Princess Fatima Fouzia & Ors. 1980 AIR 17, 1980 SCR (1) 459 http://indiankanoon.org/doc/906879/

The law governing the execution of trusts is well settled. In the case of a private trust, where there are more trustees than one, all must join in the execution of the trust. The concurrence of all is in general necessary in a transaction effecting the trust property, and a majority cannot bind the trust estate. In order to bind the trust E. estate, the act must be the act of all. They constitute one body in the eye of law, and all must act together. This is, of course, subject to any express direction given by the settlor. The Judicial Committee in Lala Man Mohan Das v. Janki Prasad quoted a passage from Lewin's Law of Trusts, 15th ed., p. 190, to the effect :

"In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees they all form as it were but one collective trustee, and there fore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinction: all who accept the office are in the eye of the law acting trustees. If any one refuses or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co- trustee may be regarded as the act of both. But such sanction or approval must be strictly proved."

The decision in Lala Man Mohan Das's case has been followed with approval by this Court in L. Jankirama Iyer & Ors. v. Neelakanta Iyer & Ors.

where there are several trustees they must act unanimously in making a sale or a contract of sale, unless it is provided otherwise by the terms of the deed. In exercising the power of sale, as in the exercise of other powers, a trustee cannot, therefore, properly delegate the performance of the acts which he ought personally perform. Although a trustee may listen to the opinions and wishes of others, he must exercise his own judgment. Thus a trustee for sale of property, cannot leave the whole conduct of the sale to his co-trustees. The reason for this is the settlor has entrusted the trust property and its management to all the trustees, and the beneficiaries are entitled to the benefit of their collective wisdom and experience: Underhill's Law of Trusts and Trustees, 12th Ed., pp. 434, 442-43: Scot on Trusts, vol. 2, p. 1033.

Section 48 of the Trusts Act provides as follows:

"48. When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides."

It is axiomatic that where there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides. 

If the validity of an alienation effected by the trustees falls to be considered only in the light of s 48, the fact that out of the three trustees only two have executed the sale deed would by itself make the transaction invalid and would not convey a valid title to the transferee.

A trustee cannot delegate his functions except as provided in s. 47, which reads:

"47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or

(c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation."

Section 48 is a corollary of s. 47 for, if the trustees cannot delegate their duties, it follows that they must all personally perform those duties, and not appoint one of themselves to manage the business of the trust; for the settlor has trusted all his trustees, and it behoves each and every one of them to exercise his individual judgment and discretion on every matter, and not blindly to leave any questions to his co-trustees or co-trustee.

Gifts under Mahommedan Law

Transfer of immovable property made in consideration of a part of an existing dower debt is a sale. An oral transfer of immovable property worth more than Rs. 100 cannot be made by a Muslim husband to his wife by way of gift in lieu of dower-debt which also exceeds Rs. 100. Such a transaction is neither a gift nor a combination of gifts which can be made orally; it is a sale which can be effected by means of a registered instrument only.

Ghulam Abbas vs Mt. Razia Begum And Ors AIR 1951 All 86
http://indiankanoon.org/doc/301560/

Characteristics of Gift under Mohemmadan Law was considered in this case to determine whether the transaction was a sale or gift simpliciter.

10. Gifts under Mahommedan Law may be classified under three heads :

"(1) A hiba, pure and simple ;

(2) A hiba-bil-ewaz (a grant or gift for a consideration) which is more in the nature of an exchange than a gift; and 

(3) A hiba ba-shart-ul-ewaz, or a grant made on the condition that the donee or transferee should pay to the donor at some future time or periodically some determinate thing in return for the grant." (Syed Ameer Ali's Mahommedan Law, Vol. I, p. 34, 4th Edn., 1912).

11. In Durr-ul-Mukhtar, a hiba, or gift, pure and simple, is defined as "the transfer of the right of property in the substance?-(tamlik-ul-ain) by one person to another without consideration (ewaz) but the absence of consideration is not a condition in it."

12. Syed Ameer Ali, in his commentary on Mahommedan Law, at p. 40, has amplified the definition in these terms :

"In other words a hiba is a voluntary gift without consideration of property or the substance of a thing by one person to another so as constitute the donee, the proprietor of the subject-matter of the gift. It requires for its validity three conditions: (a) a manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; and (e) the taking possession of the subject matter of the gift by the donee either actually or constructively."

15. Under the Mahommedan Law, writing is not essential to the validity of a gift, either of movable property or of immovable property, which is complete and valid on proof of a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession over the subject of the gift by the donor to the donee ; but whether a gift for considerations (hiba-bil-ewaz) can be made orally depends upon the answer to the question whether it does or does not amount to a sale, as defined in Section 54, T. P. Act.

In this case the transaction not being a hiba or gift pure and simple or a combination of such gifts, court had to determine whether it is a hiba-bil-ewaz, a grant or gift for consideration, recognised by the Mahommedan Law, and also whether it amounts to a "sale" within the meaning of the term as defined in Section 54, T. P. Act. 

Syed Ameer Ali has, in his commentary on Mahommedan Law, at p. 158, thus explained ewaz or consideration and the hiba-bil-ewaz or gifts for consideration in the earlier and modern times :

"According to the original conception, which in itself was a development of the earlier rules, 'ewaz' or consideration was of two kinds ; one which was subsequent to the contract (of gift), the other which was conditioned in it. (Fatwai Alamgiri, Vol. 4, p. 549). In other words, in the first case the consideration was delivered to the donor after his gift, and the transaction was treated as a case of mutual gift. There was no stipulation regarding the giving of ewaz, but the moment it was received by the donor his right of revocation dropped.

This evidently was the earliest form of a gift for a consideration. The hiba-bil-ewaz of later times is clearly a development of this kind of gift.

In the other kind, the consideration was expressly stipulated in the contract, and when once it was received the transaction acquired the legal character of a sale. The modern hiba-ba-shart-ul-ewaz has unquestionably sprung from the above."

Then the court looked further at p. 162, where the learned author has further observed :

"In air these cases the consideration is not a part of the contract. And the rules stated above do not, therefore, apply to what in modern times is called a hiba-bil-ewaz, which is a transaction of quite a different nature, and partakes to a certain extent of the second kind of ewaz mentioned in the Fatwai Alamgiri, viz., where it is stipulated in the contract. In tins kind of hiba-bil-ewaz the consideration directly opposed to the object of the gift both being in esse; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. A hiba-bil-ewaz, therefore, is a sale in all its legal incidents. In sale, mutual seisin is not requisite to render the contract valid and the terms in which a contract of this kind is entered into imply, 'that the articles opposed to each other are present,' and that there is no danger of either party suffering from the other's fraud. 'I have given you this for that' implies that the consideration is present, and that the person will take care to receive it before parting with his property, and the law therefore annexes to it the quality of a sale both with regard to the condition and the effect."

The court looked at the distinction between the earliest and the modern form of hiba-bil-ewaz is important and has to be borne in mind in considering the nature of the transfer as has been clearly brought out in Baillie's Digest of Mahommedan Law, (Edn. 2, p. 122) :

" Hiba-bil-Iwaz means, literally, gift for an exchange; and it is of two kinds, according as the Iwaz, or exchange, is, or is not, stipulated for at the time of the gift. In both kinds there are two distinct acts ; first, the original gift, and second, the Iwaz, or exchange, But in the Hiba-bil-Iwaz of India, there is only one act--the Iwaz, or exchange, being involved in the contract of gift as its direct consideration. 'And all are agreed that if a person should say, 'I have given this to thee for so much,' it would be a sale; for the definition of sale is an exchange of property for property, and the exchange may be effected by the word 'give,' as well as by the 'sell.' The transaction which; goes by the name of Hiba-bil-Iwaz is, therefore, in reality not a proper Hiba-bil-Iwaz of either kind, but a sale, and has all the incidents of the latter contract. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and, what is of great importance in India, an undivided share in property capable of division may be lawfully 1 transferred by it, though that cannot be done by either of the forms of the true Hiba-bil-Iwaz."

The court held that as it was expressly stipulated in .the contract,--the grant and the consideration are admittedly parts of one and the same transaction. The husband transferred his property--and purported to do so by way of gift--for a consideration of Rs. 2,500, part of the dower-debt-due from the husband to the wife, the transferee. The transfer was not made in consideration of any earlier gift or consideration. Consequently, it was not hiba-bil-ewaz recognised by the Mahommedan law in its early and undeveloped form; but it is hiba-bil-ewaz of modern times having "the legal character of a sale"--"hiba-bil-ewaz ..... a sale in all its legal incidents."

Further looking at the definition of sale the court held :

20. "Sale," as defined in Section 54, T. P. Act, "is a-transfer of ownership in exchange for a price paid or promised or part-paid and part-promised." It is true that in some cases the word "price" has been interpreted to mean "money;" but in Saiful Bibi v. Abdul Aziz Khan, 1931 A. L. J. 951 : (133 I. C. 901) it has been held that "a transfer of property in lieu of an existing debt in cash would be a transfer for a price so as to bring it within Section 54, T. P. Act."

The use of the word "price" instead of "money" in the section signifies that the word is wide enough to include any amount which can be definitely ascertained and worked out in terms of money, such as outstanding debts. An owner of property may transfer the same in lieu of outstanding debts--and there is no legal bar against his doing so. Although debts are not "money" in the ordinary sense of the term, yet they can be worked out in terms of "money." The dower is a debt--it has been so regarded even under the Mahommedan law; consequently, if the amount of dower is ascertained and the transfer is made in lieu thereof the transfer would be for a price. The transfer in question which is a hiba-bil-ewaz, under the Mahommedan law, having all the legal incidents of a sale, falls within the purview of Section 54, T. P. Act.

21. It follows, therefore, that the transfer in the present case is a hiba-bil-ewaz, a gift for consideration, having all the legal characteristics of a sale; and, inasmuch as the provisions of Section 54, T. P. Act, apply even to a sale transaction between Muslims, the transfer must be deemed to be a sale within the meaning of the said section. 

After considering numerous earlier decisions, the court held :

42. A transfer may have all the attributes of a true 'hiba-bil-iwaz' known to Mahommedan law, and it may also be treated as such; but if it falls within the purview of Section 54, T. P. Act, and is not effected in the manner provided therein, it will be inoperative and ineffectual in law. The delivery of possession under such a, transfer will also be ineffectual as against the real owner of the property.

43. If there is a transfer for consideration and the consideration is such which can be considered price within the meaning of Section 54 of the Act, the transfer would fall within the purview of the said section. Under Section 129, T. P. Act, the rules of Mahommedan law are not affected by the provisions relating to gifts in that Act; but there is nothing in the Act which exempts transactions in the nature of a sale-from the operation of Section 54 of the Act. The obvious reason why two Muslims cannot by an oral, transaction transfer to each other two properties in exchange for a price is that, such, a transaction would be governed by the provisions of Section 54, T. P. Act, which also govern sale transactions between Muslims.

Agreement to Sell - S. 53A of Transfer of Property Act

Patel Natwarlal Rupji vs Shri Kondm Group Kheti Vishayak & Anr
http://indiankanoon.org/doc/484854/

The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act, Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a court of law. 

Section 53-A of the Act merely protects the transferee's right to retain possession of the property had under the contract and imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title to the defendant in possession nor can he maintain a suit on title. Section 53- A can be used as a shield but not as an independent claim either as a plaintiff or as a defendant.

Section 53-A of the Act provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf which constitutes 'transfer', and the transferee has, in part performance of the contract, taken possession of the property of the transferor, the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English Law, Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the Contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. A person who pleads equity must come to the court with clean hands and he alone is entitled to the benefit of his section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the Conditions mentioned in the section are fulfilled by the transferee, and section bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee.

In Sardar Govindrao Mahadik & Anr. v, Devi Sahai & Ors., [1982] 1 SCC 237, Supreme Court had held that the court would look at the writing that is offered as a contract for transfer for consideration of any immovable property, then examine the acts said to have been done in furtherance of the contract, and find out whether there is a real nexus between the contract and the acts pleaded as a part performance so that, to refuse relief would be perpetuating the fraud of the party, who after having taken advantage or benefit of the contract, backs out and pleads non-registration as a defence.

Conditions to obtain relief under S. 53A are :

(i) there must be a contract for transfer for consideration of any immoveable property;

(ii) the contract must be in writing, signed by the transferor, or by someone on his behalf;

(iii) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

(iv) the transferee must in part-performance of the contract take possession of the property, or of any part thereof;

(v) the transferee must have done some act in furtherance of the contract; and

(vi) the transferee must have performed or be willing to perform his part of the contract;

Rights of a Lessor - S. 53A of Transfer of Property Act

Section 53- A is available only as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor where the lease deed is unregistered. under s. 53A of the Transfer of Property Act, a transferor is barred from interfering with the rights of the transferee, even if the transferee gets possession of any part of the property sought to be trans- ferred by the unregistered document of transfer. That section specifically uses the expression "taken possession of the property or any part thereof"

Where lease is for a period exceeding one year, Section 107 of the Transfer of Property Act is applicable and such a lease could not have been validly made, except under a registered instrument. Where no definite period for the lease is mentioned, S. 106 of the Transfer of Property Act is applicable and the lease  in respect of immovable property must be deemed to be a lease from month to month.

Delhi Motor Company And Ors vs U.A. Basrurkar And Ors 1968 AIR 794, 1968 SCR (2) 720 
http://indiankanoon.org/doc/1765703/

S. 53A is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but do not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. Section 53A of the Transfer of Property Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor.

S. 27A of Specific Relief Act is not applicable when compared with the provision in S. 53A of the Transfer of Property Act clearly brings out the position that the former section is only applicable when possession of the entire property, which is the subject-matter of the contract, has been taken, while the latter section is made applicable even if the lessee takes possession of any part of the property.

Prosecution under S.198 CrPC for Offence of Bigamy S. 494 & 495 of IPC

Thangamani vs State Of Kerala II (2006) DMC 222, 2006 (1) KLT 110

http://indiankanoon.org/doc/1300809/

Only upon a complaint made by “some person aggrieved” the Court can take cognizance of the offence. Key word “some person aggrieved” is qualified by proviso to S. 198(1) CrPC.

Section 198: Prosecutions for offences against marriages.--

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that-

(a) xxx                       XX                   xxx

(b) xxx                       XX                   xxx

(c) where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

If the person aggrieved of offence under Section 494 IPC is the wife, the statute recognises certain close relatives stated therein as “some person aggrieved” who can file a complaint on 'on her behalf.

A look at proviso (c) will show that the statute has made a special provision for the wife in case of two important matrimonial offences falling under S. 494 and S. 495 of IPC only. Statutory language lays emphasis on the words “on behalf of” and has made an exhaustive list of the category of persons qualified by “some aggrieved person” of S. 198 (1) CrPC. Kerala High Court gave a broader field to the same holding that the person so listed need not necessarily file the complaint “on behalf of” the aggrieved wife, but can do so even in his individual capacity.

In Thangamani(supra), question arose whether the complaint ought to be filed only  “on her behalf” and not on their own behalf. Referring to the dictionary meaning of “some”, High Court of Kerala held any person who is a member of the group of "aggrieved persons" can file complaints for offences falling under S. 198 CrPC.

The Ld. Judge held “'some person aggrieved' appearing in Section 198 of the Code are used to include also, persons other than the spouses” and therefore the son of the aggrieved wife can make the complaint on his own behalf, in his individual capacity as a person aggrieved by offence of bigamy. There is no bar in the court taking cognizance of such offence on a complaint filed by him, individually.”

The court reasoned as under:

“8. The general rule in criminal law is that any person, whether aggrieved or not, can set law in motion. Section 198(1) of the Code only carves out an exception to that rule and restricts filing of complaints in matrimonial offences by any person other than those who are aggrieved by such offences. But, that does not mean that the spouses alone are the aggrieved. The section does not create any bar in certain aggrieved persons filing the complaint in matrimonial offences. If spouses alone are intended to be the persons aggrieved, (who can file complaints in offences against marriage) necessarily the expression 'some' in Sub-section (1) to Section 198 of the Code was unnecessary. It was enough if some other expression such as, 'spouses aggrieved', 'either of the persons aggrieved' etc. are used.”

Whether the father of the aggrieved party can file a complaint for the offence under Section 494, Indian Penal Code. Whether 'on her behalf’ would mean the express consent by the party aggrieved?

In Dinesh Kumar And Ors. vs Rasik Bihari Joshi And Anr 1999 (2) MPLJ 88 http://indiankanoon.org/doc/1078057/ Madhya Pradesh High Court held :

The language of this clause is clear that where the person aggrieved by the offence punishable under Section 494 or 495, Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the Court by any person related to her by blood, marriage or adoption. By the Amending Act, the father is empowered to file complaint on behalf of the wife.

7. …..The words used is "complaint may be filed on her behalf by her father". Therefore, any complaint made by the father shall be deemed to be proper unless it is established by the defence that the complaint was without consent of the aggrieved party i.e. the wife.

8. The consent is to be inferred from the facts of each case. Consent may be express or implied.