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1978 Supreme(J&K) 50

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Gh. Mohammad Mir, J.
Krishen Kumar Khosa - Appellant
Versus
Krishan Lal & Ors. - Respondent
Civil Original Petition No. 1/1978
Decided On : 22 August, 1978

Advocates Appeared:
Advocate For Appellant: S.P. Gupta
Advocate For Respondent: R.P. Bakshi

A petition under Section 34 of the Trust Act is maintainable only in the principal Civil Court of original jurisdiction and can be filed only by a trustee. Such a petition cannot be treated as a suit under Section 92 of the Civil Procedure Code.

Headnote:
TRUST ACT - SECTION 34 - JURISDICTION - PRINCIPAL CIVIL COURT OF ORIGINAL JURISDICTION - TRUSTEE - REMOVAL - SUIT UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE - PETITION UNDER SECTION 34 OF THE TRUST ACT - DISTINCTION - PETITION NOT MAINTAINABLE.
Fact of the Case:

Petitioner, claiming to be the Mohatamim of a trust, filed a petition under Section 34 of the Trust Act seeking a declaration that respondent No. 1 was not a legal Managing trustee and could not administer or reveal any Guru Mantra to any person interested in the institution. Respondent No. 1 objected to the maintainability of the petition on the grounds that it was not filed in the principal Civil Court of original jurisdiction and that the petitioner had no locus standi to file the petition.
Finding of the Court:

The court held that the petition was not maintainable as it was not filed in the principal Civil Court of original jurisdiction, which was the District Court, and that the petitioner had no locus standi to file the petition as he was not a trustee. The court further held that the petition could not be treated as a suit under Section 92 of the Civil Procedure Code as it involved matters of difficulty and importance that could not be disposed of in summary proceedings.
Issues: 1. Whether the petition was maintainable under Section 34 of the Trust Act? 2. Whether the petitioner had locus standi to file the petition? 3. Whether the petition could be treated as a suit under Section 92 of the Civil Procedure Code?
Ratio Decidendi: 1. Section 34 of the Trust Act confers the powers of hearing a petition on the principal Civil Court of original jurisdiction, which is the District Court. 2. A person who is not a trustee has no locus standi to file a petition under Section 34 of the Trust Act. 3. A petition under Section 34 of the Trust Act cannot be treated as a suit under Section 92 of the Civil Procedure Code as it involves matters of difficulty and importance that cannot be disposed of in summary proceedings.
Final Decision: The petition was dismissed.

1. In this application u/s 34 of the Trust Act it has been stated that in the city of Poonch a Dharamshalla known as Wazirni Deni Sahiba Dharamshalla exists and with this Dharamshalla large chunks of land and other immovable property was attached. A School was also being run by the trust of which Bhai Dharam Dutt was the Managing trustee and sole patron. Sh. Bhai Dharam Dutt was known as Shri Guru Maharaj. He passed away on 9-5-1978. By a will dated 23-4-1972 Shri Guru Maharaj had appointed Shri Krishen Lal, respondent No. 1 as his successor but this will was revoked by him on 17-8-1975. It was on 21-11-1977 that Shri Guru Maharaj executed a document in favour of the petitioner appointing him Mohatamim of the Trust superseding all previous appointments and documents executed in this behalf by him. Under this document Shri Guru Maharaj provided that the petitioner was to be the Managing head and patron temporarily till another Managing trustee was appointed according to the terms of the document. Also a committee to manage the affairs of the trust was appointed. The document further stated that the petitioner will surrender his rights to the permanent Managing trustee who shall be so appointed later. There were some other recitals made in the deed. In direct contravention of the contents of this document, the petitioner states, that after the death of Shri Guru Maharaj, respondents 1 and 2 have forcibly taken over the possession of the property of the trust and usurped the functioning of the petitioner as well as of the Managing Committee. It is further alleged that respondent No. 1 has set himself up as the male heir trustee of Shri Guru Maharaj which he could not have done in view of the document executed by Shri Guru Maharaj on 21-11-1977. Under the circumstances it has become difficult for the petitioner to discharge the duties and functions entrusted to him under the document executed by Shri Guru Maharaj. In Para 19 of the petition, it has been specifically prayed that this court may give a declaration to the effect that:

i) respondent No. 1 is not a legal Managing trustee ;

ii) he cannot administer or reveal any Guru Mantra to any person interested in the institution ;

iii) he cannot act in contravention of the contents of the document executed by Shri Guru Maharaj ;

iv) though he is a relation of Shri Guru Maharaj he is not entitled to work as a trustee in accordance with the said document ; and

v) respondent No. 2 cannot act as Secretary to the Managing Committee.

It is prayed that a direction in this regard be given after due consideration of all the circumstances narrated above. An affidavit in support of these contentions was also filed.

2. Mr. R. P. Bakshi filed objections on behalf of respondents 1, 6 and 7. He raised many objections and inter alia stated that the petition is not maintainable as the same had to be filed u/s 34 of the Trust Act in the principal Civil Court of original jurisdiction which in the instant case was the Court of District Judge, Poonch. His second preliminary objection was that the petitioner not being a trustee, has no locus standi to file an application u/s 34 of the Trust Act. His third objections was that the petition was not maintainable as the same was not filed for seeking opinion, advice, direction from the court regarding any present question for management or administration of the trust property. It was further stated in the objections that from a mere perusal of the contents of the petition, it would be apparent that what the petitioner was seeking was neither advice nor direction nor opinion but he was seeking the removal of respondent No. 1 from the management and trustship of the trust property, which could not be done u/s 34 of the Trust Act. It was further stated in the objections that questions of detail, difficulty and importance being involved in the petition, the same could not be entertained under the provisions of the Trust Act.

3. In view of the importance of the objecti

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1978 Supreme(J&K) 50

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMUGh. Mohammad Mir, J.Krishen Kumar Khosa - AppellantVersusKrishan Lal & Ors. - RespondentCivil Original Petition No. 1/1978Decided On : 22 August, 1978

A petition under Section 34 of the Trust Act is maintainable only in the principal Civil Court of original jurisdiction and can be filed only by a trustee. Such a petition cannot be treated as a suit under Section 92 of the Civil Procedure Code.

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Gh. Mohammad Mir, J.
Krishen Kumar Khosa - Appellant
Versus
Krishan Lal & Ors. - Respondent
Civil Original Petition No. 1/1978
Decided On : 22 August, 1978