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2024 Supreme(Cal) 82
IN THE HIGH COURT AT CALCUTTA
Krishna Rao, J.
Abhishek Agarwalla & Ors. – Petitioners
Versus
Kailash Nevatia & Ors. – Respondents
IA No: GA 7 of 2022, In CS 43 of 2016, GA 8 of 2023 In CS 43 of 2016
Decided On : 25-01-2024
Advocate Appeared:
For the Petitioner: Mr. Sakya Sen, Mr. Shiv Ratan Kakrania, Mr. Ovik Sengupta, Mr. Karanjeet Sharma, Mr. N. Das
For the Respondent: Mr. Swarnendu Ghosh, Mr. Nirmalya Dasgupta, Mr. Dibnath Dey, Ms. Pallavi Pain, Mr. Siddhartha Banerjee Mr. Arnab Datta Ms. Labani Dey Mr. Sailendra Nath Chakraborty Mr. S.N. Ghosh Mr. Saptarshi Chakraborty Mr. Sabyasachi Hazra
IMPORTANT POINT
The appellate court's ruling on the defendant's entitlement to challenge the plaintiffs' locus and the open issues regarding the applicability of Section 92 were central to the court's decision.
Headnote:
Trustee - Trust Property - Charitable and Religious Trusts Act, 1920 - Section 92 of the Code of Civil Procedure, 1908 - [Charitable and Religious Trusts Act, 1920, Section 7; Code of Civil Procedure, 1908, Section 92]
Fact of the Case:
The defendant filed applications for rejection of the plaint, claiming that the plaintiffs had no statutory right to file the suit and that they had not obtained leave under Section 92 of the Code of Civil Procedure, 1908. The plaintiffs sought framing of a scheme for trust management and removal of trustees.
Finding of the Court:
The court found that the defendant's applications were not maintainable as the appellate court had held that the defendant was not entitled to challenge the plaintiffs' locus in the suit or the petitioners' locus in the petition under the Charitable and Religious Trusts Act, 1920. The court also noted that all issues relating to the applicability of Section 92 were left open to be decided at trial.
Issues: The issues revolved around the plaintiffs' statutory right to file the suit, the requirement of obtaining leave under Section 92 of the Code of Civil Procedure, 1908, and the defendant's challenge to the plaintiffs' locus in the suit.
Ratio Decidendi: The court's decision was influenced by the appellate court's ruling on the defendant's entitlement to challenge the plaintiffs' locus and the open issues regarding the applicability of Section 92, which were to be decided at trial.
Final Decision: The court dismissed the defendant's applications for rejection of the plaint, finding them not maintainable.
JUDGMENT :
Krishna Rao, J.
1. The defendant no. 5 has filed an application being G.A No. 7 of 2022 for rejection of plaint on the pretext that the mother of the plaintiff no.1 had initially filed an application for grant of probate of the alleged Will dated 15th December, 1999 being PLA No. 158 of 2000 which was subsequently converted to a Testamentary Suit No. 3 of 2017 and upon demise of the mother, the plaintiff no.1 is proceeding with the suit but the plaintiff no. 1 has not taken any proper steps for disposal of the said proceeding and now the plaintiffs have filed the present suit though the plaintiffs have no statutory right to file the suit.
2. The defendant no. 5 says that Jagdish Prasad Tulshan was holding the post of Principle Trustee in respect of all the Trust properties namely Rai Surajmull Bahadur Charitable Trust, also known as Rai Surajmull Bahadur Charitable Fund and he died on 20th January, 2000 but he had not executed any Will dated 15th December, 1999 in favour of his sister Saroj Agrawalla.
3. The defendant no. 5 says that the plaintiff no.1 is not having any right to interfere with the management or administration of the Trust Property. The plaintiff no.1 has filed the suit upon death of his mother along with other plaintiffs though he has not acquired any right over the property.
4. The plaintiff nos. 2 and 3 are not the descendants of the family of the Settlor as per Trust Deed dated 3rd July, 1928 and both are outsiders. As per the Trust Deed, only the legal heirs of Rai Shewpersad Tulshan would become the Trustee of the Rai Surajmull Bahadur Charitable Trust. The plaintiff nos. 2 and 3 are the outsiders and have no statutory right to file the instant suit.
5. The defendant no. 5 says that by a purported resolution taken by the concerned parties, the defendant no. 2 was appointed as a Trustee of the Trust by the surviving Trustees but as per the Trust Deed dated 3rd July, 1928, the defendant no. 2 is not a descendant of the Tulshan family and the defendant no. 2 is just a stranger and outsider. The genealogical table relied by the plaintiffs is not correct.
6. The defendant no. 5 says that the defendant no. 3 has no statutory right to contest the present suit as previously he had filed a Civil Suit no. 202 of 2002 before this Court claiming himself as the last male lineal descendant of the Settlor and entitled to be the Principle Trustee but the said suit was dismissed and the order of dismissal was duly affirmed by the Appellate Court. After the dismissal of the suit, the defendant no. 3 had filed an application praying for an order allowing him to file written statement in the proceeding initiated under Section 7 of the Charitable and Religious Trusts Act, 1920 but the said application was also dismissed. After the said order, the defendant no. 3 was removed from the office of Interim Trusteeship.
7. The defendant no. 5 also filed an application being G.A. No. 8 of 2023 praying for summarily dismissal of the suit on the pretext that the plaintiffs have not obtained leave under Section 92 of the Code of Civil Procedure, 1908 for institution of the suit.
8. The plaintiffs say that prior to filing of the instant suit, the defendant no. 1, Rajendra Kumar Banka, since deceased, Ramwatar Banka, since deceased and the defendant no. 2, Kailash Nevatia have filed a proceeding being ACR No. 1 of 2002 under the Charitable and Religious Trust Act, 1920 relating to the operation of the bank account of the Trust and on account of stalemate which had arisen upon the death of Jagdish Prasad Tulshan, since deceased, the last Trustee of the Trust. This Court by an order dated 10th February, 2023 had dismissed the said proceeding and now, the Trust is under the Supervision of Supervisory Trustee.
9. The plaintiff no. 1 is the descendant of the family of the Settlor and the plaintiff nos. 2 and 3, since the last 10 years have been regular visitors of the Dharmashalas owned and maintained by the Trust at Haridwar, Chira
