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1977 Supreme(All) 275
Allahbad High Court
B.N.SAPRU
Kishore Joo - Appellant
Versus
Guman Behari Joo Deo - Respondent
Decided On : 10/06/1977
S.P. Srivastava, for Appellant; J.N. Agarwal and Yogesh Agarwal, for Respondent.
A decree can only be executed by the trustees of a trust and not by the Administrator of the trust.
Headnote:
EXECUTION OF DECREE - TRUST - APPOINTMENT OF TRUSTEES - EXECUTION OF DECREE BY TRUSTEES - AMENDMENT OF EXECUTION APPLICATION - LIMITATION - SECTION 99, C.P.C. - [ORDER 21 RULE 16, C.P.C.]
Fact of the Case:
A suit was filed on behalf of an Idol through the District Magistrate, Hamirpur as Administrator. A money decree was passed in favor of the Idol. Subsequently, a Trust deed was executed and a trust called the Sri Guman Behari Joo, Rainpur Temple Trust was created. The District Magistrate of Hamirpur was appointed Administrator of the temple. An execution application was filed by the District Magistrate in his capacity as President of the Trust. The judgment debtor objected to the execution application on the ground that the decree could only be executed by the trustees and not by the Administrator.
Finding of the Court:
The court held that the execution application was not maintainable as it was filed by the District Magistrate in his capacity as President of the Trust and not by all the trustees. The court further held that the amendment of the execution application to include the names of the trustees and the Chairman of the Board of Trustees was not permissible as it was barred by limitation. The court also held that the provisions of Section 99, C.P.C. did not apply as the defect in the execution application was such as to render it not maintainable in law.
Issues: 1. Whether the execution application was maintainable as it was filed by the District Magistrate in his capacity as President of the Trust and not by all the trustees? 2. Whether the amendment of the execution application to include the names of the trustees and the Chairman of the Board of Trustees was permissible as it was barred by limitation? 3. Whether the provisions of Section 99, C.P.C. applied to the defect in the execution application?
Ratio Decidendi: 1. The court held that the execution application was not maintainable as it was filed by the District Magistrate in his capacity as President of the Trust and not by all the trustees. The court relied on the provisions of Section 48 of the Indian Trusts Act, which provides that where there are more trustees than one, all must join in the execution of the Trust except where the Instrument of Trust otherwise provides. 2. The court held that the amendment of the execution application to include the names of the trustees and the Chairman of the Board of Trustees was not permissible as it was barred by limitation. The court relied on the judgment of the Supreme Court in the case of L. J. Leach and Co. Ltd. v. M/s. Jardine Skinner and Co., where it was held that the Courts would, as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. 3. The court held that the provisions of Section 99, C.P.C. did not apply to the defect in the execution application as the defect was such as to render it not maintainable in law.
Final Decision: The appeal was allowed, the orders of the lower appellate court and of the execution court were set aside, and the execution application was dismissed.
2. On 11-5-1951 a suit was filed on behalf of the Idol through the District Magistrate, Hamirpur as Administrator. The suit was decreed on 11-5-1961 and a money decree was passed in favour of the Idol. On 8-10-1960 the Governor of Uttar Pradesh executed a Trust deed and created a trust called the Sri Guman Behari Joo, Rainpur Temple Trust by a deed registered on 18-8-1961. Among the recitals in the Trust deed were the following :
" Know all men by these presents that I, the Governor, the Uttar Pradesh (hereinafter referred to as the Settlor ) do hereby constitute and creat a Trust to be called as Sri Guman Bihari Ju Rainpur Temple Trust:
Whereas arising out of Art. 11 of the covenant for the formation of the former United State of Vindhya Pradesh, an inventory of private properties of His Highness the Maharajadhiraja of Charkhari was settled between the Government of India and His Highness Maharajadhiraja Jahendra Singh Ju Deo Bahadur of Charkhari and in that connection it was decided that the temple of Sri Guman Bihari Ju, Rainpur and its attached properties, should be managed as a public trust;
And whereas in consequence of the promulgation by the Governor-General of the Provinces and States (Absorption of Enclaves) Order, 1950, the management of the Rainpur Temple which formerly vested in the Ruler of the former Charkhari State, devolved on the Government of Uttar Pradesh (hereinafter called the State Government ) as the authority in succession, and the Government of India has, after informing the said Maharajadhiraja authorised the State Government to settle and create a Trust for the management of the said Temple and its attached properties; And whereas the State Government has decided to create a Trust in the manner hereinafter appearing;"
Under the deed of Trust various trustees were appointed and the District Magistrate of Hamirpur, if he happened to be Hindu was also to be a trustee. The tenure of the trustees was also provided for. Thereafter cl. (3) provided that:-
" The Trustees aforesaid shall collectively be called the Board of Trustees . From amongst the Trustees the State Government shall appoint a person to be the Chairman of the Board of Trustees who shall exercise such power and perform such duties as have been assigned to him by these presents." Thereafter cl. (4) provided:
" All rights, title and interests in the Mid temple and the ownership of its properties, whether immovable or movable, shall stand transferred to, and shall vest in the said Trust, as from the date of execution of these presents." Clauses 12 to 16 run as follows :
12. The management and control of the property and affairs of the Trust shall be vested in Board of Trustees with power and authority to make due provision for the purpose of the administration of the Trust and its properties and for the conduct of their business, in such manner and
subject to such rules and regulations as the Board of Trustees may prescribe from time to time.
13. The trustees shall transact their business in a duly invited and assembled meeting which would ordinarily take place at least twice a year. The vote of majority shall prevail at their meetings. The Chairman shall have an additional or casting vote in the case of equality of votes.
14. The time and date and place of meetings shall be determined by the Chairman. On the requisition in writing by any of the Trustees, the Chairman shall convene a special meeting of the Board of Trustees for considering any matter mentioned in the requisition. Fifteen clear days notice
