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Andhra Pradesh High Court
Judges : V.RAJAGOPALA REDDY
HASAN BIN MUBARAK - Appellant
Versus
CITY CIVIL COURT, HYDERABAD - Respondent
Decided On : 04-07-98
Indian Trusts Act - Section 34 - Constitution of India,1950 - Article 227 of Constitution - challenge - Beneficiaries of net income derived from corpus of Trust property - She was entitled to a half yearly payment of and a monthly allowance for her maintenance - Management of Trust has entertained a doubt Court view of serious allegations made by her husband petitioner herein whether she was mentally unsound and whether above payments could or could not be paid to her in management of Trust - Hence above O. P. was filed to clear any doubt as to capability of beneficiary to receive amounts - Whether respondent could seek advice or direction from Court below in matter - Whether respondent could seek a direction from Court so as to enable him to make payments to respondent? Only doubt that respondent entertained was whether respondent was not a normal person as alleged by petitioner - Court has therefore to decide whether respondent was an insane person in exercise of its jurisdiction under section 34 of Act - Court cannot exercise its jurisdiction unless it was satisfied with two conditions Whether question relates to execution of trust? Whether direction or advice could be given or tendered without entering into merits of question by way of summary disposal - whether petitioner was a necessary party to O. P - Held, Both conditions were not satisfied to enable Court to exercise jurisdiction under Sec. 34 of Act - Impugned order was therefore without jurisdiction and void - It was contended that petitioner being husband of respondent and interested in her health and also in seeing that allowances paid to her should be enjoyed by her without being appropriated by persons surrounding her, was a necessary party and hence O. P. was liable to be dismissed on ground of non-joinder of necessary parties - Section 34 of Act does not speak of who are necessary parties to petition - It however expressly says that a copy of petition shall be served upon interested persons - It is left to Court to decide in its discretion who was a necessary party in subject matter of petition - It is true that petitioner urges that being her husband he is interested in her - It is however case of respondents that petitioner was only interested in her money and not in her since he has not taken any care of her - If she were of unsound mind petitioner would have taken her to a Psychiatrist and would have treated her which he has not done - There was no good reason for him for not doing so - These appears to be considerable force in submission - Only respondent was a beneficiary under Trust - Only necessary party was beneficiary herself - There is no sufficient material before me to hold in this C. R. P. that petitioner was an interested person - It is true in decision cited by Counsel in Goods of Chose Deceased it has been that non-service of application under Trustees and mortgagees Powers Act on person vitally interested any order passed was liable to be set aside - From material on record it cannot be said that petitioner was vitally interested in subject matter of O. P. Though he was as her husband interested in seeing that she enjoys her allowances Trust itself should be as responsible to see that allowances are properly paid to her - In Text Book Maudsley and Burn s trusts and Trustees Cases and Materials by E. H. Burn Fourth Edition it was clearly stated that all persons having beneficial interest in or clalm against estate need not be parties to act - C. R. P. Allowed
( 1 ) THE C. R. P. arises out of the order passed by the Chief Judge, City Civil court, Hyderabad, in O. P. No. 708/97. H. E. H. The Nizams Trust (hereinafter called the Trust ) represented by its Secretary (2nd respondent) filed the O. P. against the wife of the petitioner (3rd respondent), who is one of the daughters of late Sir Osman Alikhan Bahadur, VII Nizam of Hyderabad, under section 34 of the Indian Trusts Act (for short the Act ), seeking opinion and advice of the Court.
( 2 ) THE 3rd respondent was one of the beneficiaries of the net income derived from the corpus of the Trust property. She was entitled to a half yearly payment of Rs. 11,53,260/- and a monthly allowance of Rs. 11,000/-, for her maintenance. The Management of the Trust has entertained a doubt in view of the serious allegations made by her husband, the petitioner herein, whether she was mentally unsound and whether the above payments could or could not be paid to her in the management of the Trust. Hence, the above O. P. was filed to clear any doubt as to the capability of the beneficiary to receive the amounts.
( 3 ) LEARNED Chief Judge, considering the facts of the case and examining the 3rd respondent herein, advised the Trust to pay the amounts to the 3rd respondent as she was not found to be of unsound mind. But, by way of caution, he directed that the petitioner herein should be intimated before the amount was paid, to produce any evidence as to the alleged lunacy of the 3rd respondent and as to the appointment of any guardian by any Court on the ground that she was a lunatic. If no material was produced, the 2nd respondent was free to pay to the 3rd respondent all the amounts due to her. The present c. R. P. is filed under Article 227 of the Constitution, challenging the above order.
( 4 ) SRI K. V. Satyanarayana, learned Counsel for the petitioner, advanced the following contentions: (1) That the order is without jurisdiction, as Section 34 of the Act can only be invoked to seek direction or advice in respect of the administration of Trust, without entering into the merits of a disputed fact. (2) The O. P. was not maintainable as the petitioner, being an interested party in the case, was not made a party.
( 5 ) THE first contention of the learned Counsel is that Section 34 of the Act gives a right to a trustee to seek the opinion or a direction on the questions respecting the management or administration of the Trust. The questions of difficulty or importance which could be determined only on the basis of evidence adduced, cannot be referred to the Court. Those questions could be decided only by way of instituting a suit. Since the instant O. P. pertains to a decision on an important question whether the 3rd respondent was a lunatic or of unsound mind or not, which could be decided only on the basis of evidence adduced in a properly instituted suit, the Court has no jurisdiction to entertain and decide the matter.
( 6 ) SRI J. V. Suryanarayana, learned Senior Counsel, appearing for the respondents submits that since the Management of the Trust entertained a doubt whether the amounts could be paid to the beneficiary for the proper management of the Trust, the 2nd respondent, as the Secretary of the Trust, sought the directions or advice of the Court. Hence, the petition under section 34 of the Act was maintainable.
( 7 ) BEFORE I deal with the rival contentions, which involve the scope of Section 34 of the Act, it may be useful to notice few facts which impelled the 2nd respondent to file the petition: h. E. H. Sir Osman Alikhan Bahadur, VII Nizam of Hyderabad, had created h. E. H. The Nizams Trust. As per the directions in the trust deed the 3rd respondent was entitled certain payments as the beneficiary. The 3rd respondent, however, was not paid the half yearly amount from October, 1996. It is the case of the 2nd respondent, that the petitioner in his letter dated 9-9-1996, had alleged that his wife became unsound and
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