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1981 DIGILAW 215 (CAL)

NILIMA GHOSH v. PRAKRITI BHUSAN MITTER

1981-06-19

A.K.SEN, B.C.CHAKRABARTI

body1981
( 1 ) THIS is a revisional application arising out of a proceeding under S. 90 of the Code of Civil Procedure which was registered as Title Suit No. 146 of 1980 of the Second Court of the learned Subordinate Judge, Alipore and is directed against the order dated February 17, 1981 passed by the learned Subordinate Judge disposing of the said proceeding. ( 2 ) SM. Nilima Ghosh and her daughter-in-law Sm. Ira Ghosh are the petitioners before us in this revisional application. By a deed of trust dated August 31, 1967 Sm. Nilima Ghosh settled premsies no. 6, Panditiya Terace, Calcutta in trust making herself the sole trustee. Under the said trust the settlor retained unto herself a life interest in the said property with a further provision that on her death the property would vest absolutely in her daughter-in-law, Ira Ghosh or her heirs and legal representatives as the case may be. The trust contained no express provision authorising the trustee to sell the property on any contingency. ( 3 ) ACCORDING to the settlor Sm. Nilima Ghosh, it being inconvenient for her to reside any further in the said premises and it being uneconomic to hold the property any further by letting it out to tenant, she entered into an agreement for sale of the property with the opposite party, Sri Prakriti Bhusan Mitter on December 14, 1979. In order to effect sale both the beneficiaries, namely the settlor or herself and her daughter-in-law by an instrument dated August 19, 1980 agreed to the proposed sale of the property. Since, however, the opposite party raised a dispute as to whether in the absence of any express authority the trustee can effect sale of the property, the two petitioners and the opposite party by an agreement dated August 21, 1980 agreed to refer the dispute to the court for its opinion on the point as to whether in the facts and circumstances the trustee can lawfully sell the property to the opposite party. Thus, the parties initiated the aforesaid proceeding under S. 90 of the Code as a special case which was heard and disposed of as a suit in terms of the rules of Order 36 of the Code. Thus, the parties initiated the aforesaid proceeding under S. 90 of the Code as a special case which was heard and disposed of as a suit in terms of the rules of Order 36 of the Code. By the order impugned the learned Judge however, refused to give his opinion on the disputed question so raised or answer the same though referred to him as a special case under S. 90. According to the learned Judge, the question referred to him for his opinion being a question relating to the management and administration of the trust property to be answered on interpretation of the trust deed, could be answered only by the principal civil court of the original jurisdiction of the district in view of the provisions of the Indian Trust Act and as such his court is not the proper forum for obtaining the necessary opinion. In challenging the said order of the learned Subordinate Judge in this revisional application the petitioners have challenged the correctness of the view so taken by the learned Subordinate Judge. ( 4 ) MR. Banerjee appearing in support of the revisional application has contended that the parties to the proceeding having entered into a bona fide agreement has referred certain questions to the court for its opinion in terms of S. 90 of the Code of Civil Procedure and a special case having been initiated on such an agreement it was incumbent for the court to give its opinion and that the learned Subordinate Judge went wrong in thinking that his court is not the proper forum. According to Mr. Banerjee, once the terms of S. 90 of Civil Procedure are complied with, the parties making out a special case are entitled to have the opinion of the court on the questions referred to court according to such terms. The learned Sub-ordinate Judge being the court of competent jurisdiction for the purpose of entertaining the special case under Or. 36, could not have held that this court is not the proper forum. The opposite party has entered appearance and the learned Advocate appearing for him also supports the contention of Mr. Banerjee. The learned Sub-ordinate Judge being the court of competent jurisdiction for the purpose of entertaining the special case under Or. 36, could not have held that this court is not the proper forum. The opposite party has entered appearance and the learned Advocate appearing for him also supports the contention of Mr. Banerjee. It has been contended on his behalf that the scope of a proceeding under S. 90 and that under S. 34 of the Indian Trust Act not being the same it could not have been held that S. 34 constitutes a bar t the adjudication prayed for in the special case. ( 5 ) THOUGH none of the parties is supporting the order impugned before us, on a careful consideration of the legal position we are, however, of the opinion that the learned Subordinate Judge is well justified in refusing to answer the question referred to him as a special case under S. 90 of the Code. In our view, the point of relevance is not as to whether such a question could have been competently referred to the learned Subordinate Judge for his opinion or not but whether the learned Subordinate Judge should give his opinion even if the question was competently referred to him. We agree with the learned Subordinate Judge that he should not give his opinion in a case like the present one. It is only in that context that he rightly held that his court is not the proper forum for obtaining the opinion sought for in this special case. Under Order 36 Rule 5 of the Code even if there had been a lawful agreement between the parties having bona fide interest in the question agreed to be referred to the court, the court is not bound to give its opinion unless it is further satisfied that "the same is fit to be decided". In adjudging whether it would be fit for the court to decide the case or not different considerations may come up before the court which are required to be taken note of in adjudging that point. In adjudging whether it would be fit for the court to decide the case or not different considerations may come up before the court which are required to be taken note of in adjudging that point. One of such considerations is as to whether in deciding the case the court would be intruding upon a field reserved for some other forum and once it is found that it would be so, it is certainly open to the Court then to refuse to decide the case or give its opinion irrespective of the question whether it had the jurisdiction to do so or not. On the facts of the present case we agree with the learned Subordinate Judge that the question referred to him for opinion is one relating to the management and administration of the trust property. Under the provisions of S. 34 of the Indian Trust Act such a question should be referred to the principal civil court of original jurisdiction for its opinion. Section 34 may have conferred wider powers on the court to authorise sale of a trust property by the trustee even if the trustee is not expressly authorised to do so by the deed where such a sale becomes a necessity for preservation or development of the Estate, but that makes it all the move incumbent for the parties to approach that court because that court is not only competent to give the opinion now sought for but also is only competent court to help the parties in solving their real problem viz. to effect sale of the trust property. Therefore, S. 34 not only covers the field but, in our opinion, provides the better forum for the relief the parties are really intending to have. That court is admittedly a court superior to the court of the learned Subordinate Judge. In view of the fact that the Indian Trust Act has provided for a special forum for obtaining the opinion on such a question, the learned Judge was right in refusing to give his opinion on such a question and thus intrude upon a field reserved for the other forum. This view is well supported by a Bench decision in the case of Trustees of the Port of Bombay v. Municipal Commissioners of Bombay, AIR 1930 Bom. 232. This view is well supported by a Bench decision in the case of Trustees of the Port of Bombay v. Municipal Commissioners of Bombay, AIR 1930 Bom. 232. ( 6 ) SUCH being the position, we must uphold the order and dismiss the present revisional application and we direct accordingly. There will be no order as to costs. B. C. Chakrabarti, J. : i agree. Revisional application dismissed.