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HIGH COURT OF CALCUTTA
A. K. Sarkar
DHANALAL KARNAWAT - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Matter 291 Of 1973
Decided On : DECEMBER 13, 1973
CHARITABLE AND RELIGIOUS TRUSTS ACT - SECTION 7 - TRUSTEES - LEASE OF TRUST PROPERTY - JURISDICTION OF COURT - PUBLIC TRUST - NOTICE TO ADVOCATE-GENERAL - VALIDITY OF LEASE AGREEMENT - REMEDIES FOR BREACH OF AGREEMENT.
Fact of the Case:
Trustees of a charitable and religious trust sought permission from the court to grant a long-term lease of the trust property. The application was made under Section 34 of the Indian Trusts Act, 1882. A rival claimant, who had an agreement with the trustees for the lease of the same property, challenged the validity of the order granting permission to the trustees.
Finding of the Court:
The court held that the application was maintainable under Section 7 of the Charitable and Religious Trusts Act, 1920, even though it was mentioned under Section 34 of the Indian Trusts Act. The court also held that the application was not defective for want of joinder of the third trustee, as the trust deed provided that two trustees could act in the absence of the third. The court further held that the provisions of Section 92 of the Code of Civil Procedure, 1908, requiring notice to the Advocate-General in cases involving public trusts, were not strictly applicable to the application for permission to grant a lease.
Issues: 1. Whether the application for permission to grant a lease was maintainable under Section 34 of the Indian Trusts Act or Section 7 of the Charitable and Religious Trusts Act? 2. Whether the application was defective for want of joinder of the third trustee? 3. Whether the provisions of Section 92 of the Code of Civil Procedure, 1908, requiring notice to the Advocate-General in cases involving public trusts, were applicable to the application for permission to grant a lease?
Ratio Decidendi: 1. The provisions of Section 34 of the Indian Trusts Act and Section 7 of the Charitable and Religious Trusts Act are similar, and the court has jurisdiction to grant permission to grant a lease under either provision. 2. The trust deed provided that two trustees could act in the absence of the third, and therefore the application was not defective for want of joinder of the third trustee. 3. The provisions of Section 92 of the Code of Civil Procedure, 1908, requiring notice to the Advocate-General in cases involving public trusts, are not strictly applicable to an application for permission to grant a lease.
Final Decision: The court dismissed the application challenging the validity of the order granting permission to the trustees to grant a long-term lease of the trust property.
( 1 ) ON April 11, 1973 an ex parte application was moved in Chambers by Dhanalal Karnawat and Bijoy Singh Karnawat, the trustees for selves and for their co-trustee, Surpat Singih Karnawat for leave to grant lease of the trust property being the premises No. 46. Sir Hariram Goenka Street, Calcutta-7 for a period of twenty five years with further option to renew it for twentyfive years to one Sumanlal Parekh and others on the terms and conditions contained in paragraph 19 of the petition.
( 2 ) IT appears from a copy of the deed of Trust dated 9th October, 1950 annexed to the petition that the said property No. 48, Banstolla Street now No. 48, Sir Hariram Goenka Street in Calcutta be conveyed and transferred to the trustees to be used for ever as a Dharamsala for free accommodation and lodging of only Hindu visitors and travellers in accordance with such rules and regulations as may from time to time be made or framed by the trustees. The said Dharamsala shall be named "lakhmichand Karnawat Dharamsala" which shall not be changed at any time. The trustees shall be at liberty to let out or demise such portion or portions of the trust property as they in their discretion shall think fit and out of the income thereof to pay in the first place all rates, taxes, ground rent and other outgoings and impositions which now are and may hereafter be payable in respect thereof and in the next place pay all costs and expenses for keeping the trust property in good and substantial repair and apply the balance for the objects and purposes of the trust and for defraying all expenses for the management of the said Dharamsala and the Trust property.
( 3 ) THE said trust property is in dilapidated condition and the trustees have neither any income therefrom nor any fund to construct a habitable building for Dharamsala hence they made the said application in Chambers before me for leave to grant long term lease of the said property No. 48, Sir Hariram Goenka Street. Calcutta. The application was made under Section 34 of the Indian Trusts Act. 1882 and after hearing the attorney for the said applicants order was made by me granting leave to the trustees to grant lease of No. 48, Sir Hariram Goenka Street, Calcutta for twentyfive years with option to renew the same for a further period of twentyfive years to Sumanlal Parekh and others or to such other persons having immovable properties worth not less than Rs. 12 lacs on terms and conditions inter alia as contained in paragraph 19 of the petition.
( 4 ) THE instant application has been made by one Vijoy Laxmi Brothers, a registered partnership firm with whom it is alleged that the trustees had already and prior to the proposed lease in favour of Sumanlal Parekh and others entered into an agreement for lease of the said trust property contained in the letter dated 25th May. 1972 and confirmed by the trustees by their letter dated 27th May, 1972; for inter alia recalling and/or setting aside the said order made by me on 11th April, 1973 for injunction restraining the said trustees from taking any further step in reliance upon the said order dated April 11, 1973, for stay of completion and filing of the said order, for leave to the petitioner to make this application.
( 5 ) THE first point taken by the applicant in the instant application is that since the Trust is a Religious and Charitable Trust, the said application by the trustees in which the order was made on April 11, 1973 under Section 34 of the Indian Trusts Act was not maintainable and that this Court had no jurisdiction to pass an order under the same.
( 6 ) THE provisions of Section 34 of the Indian Trusts Act are similar to those of Section 7 of the Charitable and Religious Trusts Act. The impugned order was made on llth April, 1973 on the application where in the cause title mention was made of Section 34 of the Indian Trusts Act. Apart from the said mention of Section 34 there was nothing to show that the application
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