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HIGH COURT OF CALCUTTA
Ramendra Mohan Datta
CHAMELI BIBI - Appellant
Versus
KANHAIYALAL AGARWALLA - Respondent
Suit 702 Of 1903
Decided On : SEPTEMBER 19, 1972
TRUST - SCHEME - MODIFICATION - POWER TO MODIFY - WHETHER IMPLIED - REPRESENTATIVE SUIT - WHETHER SUIT OF 1903 WAS A REPRESENTATIVE SUIT - LIBERTY TO APPLY - WHETHER CAN BE TAKEN ADVANTAGE OF BY A NON-PARTY - SCHEME SILENT ABOUT MODIFICATION - WHETHER COURT CAN INSERT SUCH A CLAUSE - INHERENT POWER OF THE COURT - SECTION 92, CIVIL PROCEDURE CODE, 1908.
Fact of the Case:
Prem Kumari, one of the daughters of Jiwandas Agarwal, a deceased trustee of a trust created by Babulal Agarwalla, filed an application to be added as a party to a suit for the appointment of a new trustee in place of her deceased father. The scheme framed in 1944 provided for the payment of Rs. 250/- per month to each of the three daughters of Jiwandas, including Prem Kumari. Prem Kumari argued that she was entitled to apply in the suit and under the scheme, by virtue of the clause in the final decree whereby liberty was given to the parties to apply.
Finding of the Court:
The court held that the suit filed in 1903 was not a suit of a representative character and accordingly, Prem Kumari could not ask to be added as a party to the suit under Order 1, Rule 10 of the Civil Procedure Code. The court further held that the liberty to apply which was provided in the final decree passed in the said suit of 1903 could be taken advantage of only by the parties to the suit or their successors-in-interest. Since Prem Kumari was not a party to the suit, she could not take advantage of the liberty to apply. The court also held that in the absence of a clause in the scheme itself providing for modification of the scheme, the same could not be inserted by the court unless a properly instituted suit of a representative character was before the court for framing a scheme containing such modification clause.
Issues: 1. Whether the suit filed in 1903 was a suit of a representative character? 2. Whether Prem Kumari could be added as a party to the suit under Order 1, Rule 10 of the Civil Procedure Code? 3. Whether the liberty to apply which was provided in the final decree passed in the said suit of 1903 could be taken advantage of by Prem Kumari? 4. Whether the court could insert a modification clause in the scheme in the absence of such a clause in the scheme itself?
Ratio Decidendi: 1. A suit under Section 539 of the Code of 1882 or under the present Section 92 of the Code of 1908 would be a suit filed in a representative character if the formalities prescribed thereunder are complied with. 2. The suit as filed in 1903 was so filed only by Amrita Bibi. She was the only plaintiff in that suit but Section 539 required that there must be two or more plaintiffs. 3. The liberty to apply which was provided in the final decree passed in the said suit of 1903 could be taken advantage of only by the parties to the suit or their successors-in-interest. 4. In the absence of a clause in the scheme itself providing for modification of the scheme, the same could not be inserted by the court unless a properly instituted suit of a representative character was before the court for framing a scheme containing such modification clause.
Final Decision: The application of Prem Kumari was dismissed.
( 1 ) THE petitioner Prem Kumar Agarwal is one of the daughters of one Jiwandas Agarwal, since deceased. Jiwandas Agarwal was one of the two trustees in respect of the trust created by one Babulal Agarwalla, deceased, by his will dated August 6, 1873 whereby he created a trust for various religious and charitable purposes including the construction of a temple at Vrindaban and a Dharamshala at Calcutta, Jiwandas, one of the joint trustees died a few months back. Since then disputes and differences arose by and between the heirs of Jiwandas, being his three daughters. The eldest son-in-law of Jiwandas by the name of Dhanpaldas Gupta, at all material time, had been and still is the other trustee in respect of the said trust for religious and charitable purposes. 1a. After the death of the said Jiwandas Agarwal, the said Dhanpaldas Gupta as the surviving trustee applied to this Court for appointment of another trustee in the place and stead of Jiwandas Agarwal, in terms of the provisions of the scheme framed herein sometime in the year 1944. A few weeks back this Court by an order appointed one Shyama Saran Agarwal as the trustee in the place and stead of the said Jiwandas Agarwal. In the said application Prem Kumari wanted her husband to be appointed as the trustee in the place and stead of her deceased father but this Court after giving her leave to intervene and after considering the facts and circumstances of the said application and in the interest of the said trust did not allow her prayer.
( 2 ) IN this application Prem Kumari wants to be added as a party to this suit on the ground that she is the beneficiary under the scheme framed in 1944 whereunder the said Jiwandas was acting as one of the trustees. Under the provisions of the said Scheme of 1944 after the death of Jiwandas a sum of Rs. 250/- would be payable from out of the trust estate to each of the three daughters of Jiwandass. According to her she is entitled to apply in this suit and under the said scheme, by virtue of the clause in the final decree whereby liberty was given to the parties to apply. According to her the suit is still alive for the purpose of carrying out of the said trust,
( 3 ) MR. Bhabra appearing on behalf of Dhanpaldas Gupta takes a preliminary point and argues that the petitioner Prem Kumari cannot be substituted in the place and stead of Jiwandass. The said place has already been filled up by appointing another trustee viz. , Shyama Saran Agarwal as per order dated August 14, 1972. Accordingly, her application to be added as a party is misconceived inasmuch as the same is not warranted either by the said scheme or by the nature of the case. According to the learned counsel there is no power reserved in the scheme itself whereby the scheme can be modified in the way it is being prayed for. Such a clause is absent in the scheme. The only persons in whom the right to make any application under the said scheme has been reserved are the two trustees and no outsider has been given any liberty or power to make an application under the scheme. Mr. Bhabra contends that under the scheme Prem Kumari has no right to apply. The only right she has got in the scheme Is to get Rs. 250/- per month. If the monthly allowance is not paid to her, she will have the cause of action against the trustees and she will be able to enforce her right by filing a suit; but in this case, the trustees are not disowning that obligation which is cast on them by the said scheme of 1944 -- Had there been such a situation she could have filed a suit for recovery of that amount. There is no allegation before this Court that any amount remains unpaid to the said daughters of Jiwandass. The said total sum of Rs. 750/- is payable by the trustees in the same way as so many other expenses are payable by them every month but because of that provision they do not-become the beneficiaries under the said scheme. She may be the descendant of Jiwandass but that d
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