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High Court Of Calcutta
Amitava Lala
MAHESH TULSHAN - Appellant
Versus
RAJENDRA KUMAR BANKA - Respondent
Suit 5 Of 2000
Decided On : 12/18/2001
TRUST - APPOINTMENT OF TRUSTEE - MAINTAINABILITY OF APPLICATION - APPLICABILITY OF INDIAN TRUST ACT, 1882 AND CHARITABLE AND RELIGIOUS TRUST ACT, 1920 - SCOPE OF SECTION 73 AND 74 OF THE INDIAN TRUST ACT, 1882 AND SECTION 7 OF THE CHARITABLE AND RELIGIOUS TRUST ACT, 1920 - APPLICABILITY OF SECTION 1 OF THE INDIAN TRUST ACT, 1882 - AMENDMENT OF APPLICATION - APPLICABILITY OF CLAUSE 12 OF THE LETTERS PATENT - AVAILABILITY OF REMEDY BY WAY OF ORIGINATING SUMMONS UNDER CHAPTER XIII OF THE ORIGINAL SIDE RULES.
Fact of the Case:
Petitioner sought to be appointed as the principal trustee of a trust created by an Indenture of Settlement and Trust, claiming to be the sole surviving male descendant of the founder. The respondents, being other descendants of the founder, opposed the application, arguing that it was not maintainable since it was made under the Indian Trust Act, 1882, which does not apply to charitable and religious trusts, and that the petitioner was not a trustee.
Finding of the Court:
The Court held that the application was not maintainable under the Indian Trust Act, 1882, as it was a charitable and religious trust, and that the petitioner could not rely on section 7 of the Charitable and Religious Trust Act, 1920, as he was not a trustee. The Court further held that the application could not be amended to incorporate section 7 of the Charitable and Religious Trust Act, 1920, as it would change the cause of action and that the petitioner had an alternative remedy by way of originating summons under Chapter XIII of the Original Side Rules.
Issues: 1. Whether the application was maintainable under the Indian Trust Act, 1882? 2. Whether the application could be amended to incorporate section 7 of the Charitable and Religious Trust Act, 1920? 3. Whether the petitioner had an alternative remedy by way of originating summons under Chapter XIII of the Original Side Rules?
Ratio Decidendi: 1. The Indian Trust Act, 1882, does not apply to charitable and religious trusts, as per section 1 of the Act. 2. An application for the appointment of a trustee under section 73 and 74 of the Indian Trust Act, 1882, can only be made by a trustee. 3. An application cannot be amended to incorporate a different provision of law if it would change the cause of action. 4. A person claiming to be interested in a trust can apply for an originating summons under Chapter XIII of the Original Side Rules, which is an alternative remedy to a suit.
Final Decision: The application was dismissed as not maintainable.
( 1 ) THIS is an application under sections 73 and 74 of the Indian Trust Act, 1882. By making this application the petitioner wanted to be appointed as principal trustee of the trust created by Rai Bahadur Seth Soorajmull Jhunjhunwalla (Tulshan) by an Indenture of Settlement and Trust dated 25th August, 1887 along with other incidental prayers.
( 2 ) THREE persons were made party respondents in the application. Fourth one wanted to be added as party respondent therein. First three respondents are male decedents wherein fourth one is female decendent. Apparently trust will be followed by the line of male decendents. Both Rajendra Kumar and Ram Awtar are the grand sons of one Sarswati Devi Banka (deceased) daughter of one Raj Bahadur Sheo Prosad Tulshan (Jhunjhunwalla) (deceased), son of the founder of the Trust. Kailash is not the family member at all. The added respondent Saroj is the sister of Jagadish Prasad Tulshan (deceased), son of second wife of one Badridas Tulshan (deceased), grandson of the founder. Therefore neither of the respondents are appointed or to be appointed by following line of male decendents. On the other hand, Mahesh Tulshan, the petitioner herein is grandson of Ganga Prasad Tulshan (deceased) son of the founder. Therefore, according to Mahesh he is the sole surviving male descendant to be appointed as principal Trustee as per the Trust Deed created by the fonder. Geneological Table being Annexure 'i' to the writ petition is as follows:-
( 3 ) THIS is a public Charitable Trust. Section 1 of the Indian Trust Act, 1882 prohibits applicability of such Act into the area where Religious or Charitable endowment applies. Till the time of application being made by a female descendant, respondent No. 4 herein for the purpose of addition of the parties, this Court proceeded with the merit of the application. But as and when the other respondents took a point of maintainability of the application and to overcome the situation when the petitioner took out an application for amendment of the cause title by making an incorporation that the application is made under section 7 of the Charitable and Religious Trust Act, 1920, the dispute cropped up. All the respondents in a chorus opposed the application from making such amendment by saying that either an application is to be made under Indian Trust Act, 1882 or the same has to be made under Charitable and Religious Trust Act, 1920. Both cannot be made at a time. Moreover, the amendment by incorporation of Charitable and Religious Trust Act, 1920 will demolish the valid point of non maintainability which they have already taken. Such point of maintain-ability, as I respect, is to say that since this is a Charitable and Religious Trust the application ought to be made under Act of 1920 unlike Act, 1882. Therefore, the very foundation of the application is bad.
( 4 ) THE objections of Mr. P. K. Das, learned senior counsel, appearing on behalf of the respondents other than the added respondent are as follows : (a) Indian Trust Act, does not apply to Charitable and Religious Trust; (b) section 7 of the Religious and Charitable Trust Act does not apply as the petitioner is not a Trustee; (c) No leave has been obtained under Clause 12 of the Letters Patent before making this application; (d) where specific provision of law is provided for the purpose such provision will be followed; (e) Trust Deed itself provides for appointment by way of instituting the suit;
( 5 ) OUT of the aforesaid points the numbers (a), (b) and (d) can be discussed at a time as already started with. It appears to that section 7 of the Charitable and Religious Trust Act, 1920 gives power to the Trustee to apply to the Court for the purpose of obtaining certain directions. Such section is very much comparable with section 34 of the Indian Trust Act. In both the sections, any Trustee without instituting the suit can be able to apply to the Court having appropriate jurisdiction mentioned the
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