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High Court of Judicature at Calcutta
KANCHAN CHAKRABORTY
Alok Kumar Nundun & Another
Versus
Samir Kumar Nundun & Others
C.O. No. 35 of 2006
Decided On : 02-08-2010
PRIVATE TRUST - REMOVAL OF TRUSTEES - JURISDICTION - INDIAN TRUST ACT, 1882 - SECTION 1, 34, 73, 74 - SAVING CLAUSE - PRIVATE RELIGIOUS ENDOWMENT - APPLICATION FOR REMOVAL OF TRUSTEES AND APPOINTMENT OF NEW TRUSTEES - MAINTAINABILITY IN PRINCIPAL CIVIL COURT OF ORIGINAL JURISDICTION.
Fact of the Case:
A private trust was created by a deed of settlement. The petitioners, being successors in the main line of succession of the creator of the trust, filed an application under Sections 73 and 74 of the Indian Trust Act, 1882 (the Act) in the Court of the District Judge, South 24 Parganas, seeking removal of the trustees and appointment of new trustees on the ground of mismanagement of trust property and misappropriation of funds.
Finding of the Court:
The Court held that the trust in question was a private trust and not a public or charitable trust, and therefore, the saving clause of Section 1 of the Act did not apply. The Court further held that the application under Sections 73 and 74 of the Act was maintainable in the Court of the District Judge, South 24 Parganas, which was the principal Civil Court of original jurisdiction in the district where the trust property was situated.
Issues: 1. Whether the trust in question was a private trust or a public or charitable trust. 2. Whether the saving clause of Section 1 of the Act applied to the trust in question. 3. Whether the application under Sections 73 and 74 of the Act was maintainable in the Court of the District Judge, South 24 Parganas.
Ratio Decidendi: 1. The Court held that the trust in question was a private trust based on the following factors: (i) the trust deed specifically mentioned the modalities of succession of the office of Shebiats, (ii) no outsider of the family was permitted to be included as Shebiats-cum-Trustees in future, (iii) no right to sale or mortgage the Trust property was permitted specifically, and (iv) the creator of the trust permitted the future Trustees-cum-Shebiats to realize rent from the Trust property for specific purposes, such as Sheva-Puja of the Deities, maintenance of the Trust property, paying salary to the priest, remuneration to the Trustees-cum-Shebiats, and in case of any surplus, income would be spent for hospitality and charity for the benefit of needy people. 2. The Court held that the saving clause of Section 1 of the Act did not apply to the trust in question as it was not a public or charitable trust. 3. The Court held that the application under Sections 73 and 74 of the Act was maintainable in the Court of the District Judge, South 24 Parganas, which was the principal Civil Court of original jurisdiction in the district where the trust property was situated.
Final Decision: The Court allowed the revision application and set aside the order of the lower court which had held that the application under Sections 73 and 74 of the Act was not maintainable in that court.
Kanchan Chakraborty, J.
1) The challenge in this revision application is to the order dated 29.10.2005 passed by the learned Additional District Judge 9th Court at Alipore in Misc. Case No. 18 of 2002 whereby the learned Court found the case not maintainable in his Court and directed to return the application under Order 7 Rule 10 of the Civil Procedure Code with a liberty to file the same in the appropriate Court having jurisdiction to try the same.
2) The backdrops of this revision application is stated below; in short :
a) One Rajani Kanta Nundun, since deceased, the predecessor-in- interest of the parties to the Misc. Case no. 18 of 2002 executed a deed of settlement dated 3.4.1958, registered on 18.4.1958 whereby he created a religious and charitable trust in favour of his family deities, Sri Sri Sridhar Narayan Jiwe Thakur and Srimati Mahalakshmi Thakurani. Rajani Kanta Nundun installed the deities mentioned above in a ‘Thakurghar’ on the roof of the second floor of the premises no. 27A Beni Nundun Street. By the said deed of settlement creating trust Rajani Kanta Nundun appointed himself as the first trustee and shebiat for the purpose of said trust. The modalities of Shebiatship and Trustees was clearly mentioned in the settlement deed. According to that settlement deed, the male heir in the direct line of sanction would be Trustees-cum-Shebiats. He also made provisions for continuous worship and daily sheva-puja of the deities by appointing priest on payment of monthly salary. He also provided in the settlement deed for remuneration of the trustees and source of money for the maintenance of Trust properties. According to the said deed surplus income of the Trust properties would be spend for hospitalities and charities for relief of needy public.
b) That during his life time the said Rajani Kanta Nundun being the sole Trustees-cum-Shebiats performed his duties and obligations as such in terms of the said deed of settlement and also spend excess amount for charitable purposes. He died intestate on 13.1.1992 leaving behind him surviving his heirs in the direct main line i.e. his widow, Grandson, daughter-in-law, four sons who inherited the property laid by Rajani Kanta Nundun. The petitioner Alok Kumar Nundun is the Grandson of Rajani Kanta Nundun while Gita Nundun, the petitioner no. 2 is his mother. The father of the petitioner no. 1 and husband of petitioner no. 2 Aurn Kumar Nundun predeceased Ranjani Kanta Nundun. The opposite parties 1 to 4 are sons of Rajani Kanta Nundun. All of them mutually started working as trustees-cum-shebiats in respect of the Trust properties. The opposite parties, in order to oust the petitioners from the Trust properties and family dwelling house, disturbed the petitioner from performing any act of Sheba-Puja of the deities and declared that they were the only Shebiats-cum-Trustees in respect of the Trust created by Rajani Kanta Kundun. They started realising the entire amount of rent from the tenants of the Trust properties and misappropriated the same without rendering any account to the petitioners. They also failed and neglected to perform Sheba-Puja of the Deities and maintain the Trust properties properly. There was mismanagement and gross negligency in the matter of Sheva-Puja of the Deities and maintenance of the Trust properties. The petitioner served a notice through their Lawyer on 28.9.1992 on the opposite parties demanding the account of the rent realised by the opposite parties and to pay proportionate share of the same to the petitioners. The opposite parties by a reply dated 5.10.1992 denied the right of the petitioners to act as Shebiats-cum-Trustees. They filed a M. P. Case no. 882 of 1994 in the Court of learned Executive Magistrate making false allegations of overt the act by the petitioners. They instituted a suit being no. T.S. 98 of 1994 in the 4th Court of Civil Judge, Junior Division at Alipore against the petitioners in respect of Trust properties
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