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2006 DIGILAW 1655 (DEL)

RAJ KUMARI v. JAI DEVI BAI

2006-09-15

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) ADMIT. ( 2 ) AT request of learned counsel for the parties, the matter is taken up for final disposal. ( 3 ) A Deed of Settlement was made by late Sh. Rai Bahadur Harish Chandra, advocate whereby he appointed himself, his wife and one Lala Madho Ram as the nominees to manage the trust properties including double storeyed building bearing Municipal No. 52, G. B. Road, Delhi. The trust was made for the benefit of the adopted son Shri Bhagwan and his family. Clauses 5 and 6 of the Trust deed are as under:"5. If Mr. Shri Bhagwan has any daughters their marriage expenses will be met out of the reserves. All properties and reserves are to be delivered to Mr. Shri bhagwan 's sons jointly after his life-time; but in case they are all minors at that time the Trustees will continue the management until the eldest attains majority; when properties will be delivered to him for himself and as guardian for his minor brothers. 6. If God forbid Mr. Shri Bhagwan dies childless. (a) leaving a widow; the Trustees shall pay one fourth of the income of these properties to her and one of the two Katra Nil houses of her choice will goto her absolutely; the residue to be spent upon charity as specified in the following sub-paragraph. b) If Mr. Shri Bhagwan , God forbid, dies childless and without leaving a widow, the income of all these properties will be used by the trustees for awarding scholarships to deserving students and the property will form part of lala bhagirath Lal Trust as set out in my will. " ( 4 ) MR. SHRI Bhagwan passed away and Smt. Urmila Devi, wife of late Mr. Shri bhagwan was inducted as a trustee and ultimately she alone survived as a trustee. ( 5 ) AN eviction petition was filed on behalf of the Trust by Smt. Urmila Devi against the respondent/tenant under Section 14 (1) (a) and (c ) of the Delhi Rent control Act, 1958 (herein-after referred to as the Rent Act) in the year 1980. ( 6 ) AN application was filed under Order 22 Rule 10 r/w Section 151 of the of the code of Civil Procedure, 1908 (herein-after referred to as the said Code) by the two daughters of late Mr. Shri Bhagwan, petitioners no. ( 6 ) AN application was filed under Order 22 Rule 10 r/w Section 151 of the of the code of Civil Procedure, 1908 (herein-after referred to as the said Code) by the two daughters of late Mr. Shri Bhagwan, petitioners no. 1 and 2 herein and Smt. Urmila Devi. It may be noticed that Mr. Shri Bhagwan had already passed away. In terms of this application, the factum of the dissolution of the trust was set out as also the fact that the three applicants were the only legal heirs of late rai Bahadur Harish Chandra. A substitution was sought of three petitioners in place of the Trust. This application was allowed by the Additional Rent controller in terms of the order dated 27. 01. 98 but on an appeal being filed by the respondent, the Rent Control Tribunal set aside the order of the Additional rent Controller on 10. 08. 1998. The petitioners have thus filed the present appeal. ( 7 ) THE present appeal is filed under the provisions of Section 39 of the Rent act which since stands deleted from the statute but in respect of eviction proceedings filed prior to the amendment in 1988, the benefit of the said provision is still available. It is only a question of law which is required to be examined in the present appeal. ( 8 ) IN my considered view a question of law does arise as to whether the three applicants could have been impleaded as the petitioners in place of the Trust in view of provisions of Sections 77 and 78 of the Indian Trust Act, 1882 (herein-after referred to as the Trust Act ). The said provisions read as under:"77. Trust how extinguished " A trust is extinguished -a) when its purpose is completely fulfilled; or b) when its purpose becomes unlawful; or c)when the fulfilment of its purpose becomes impossible by destruction of the trust property or otherwise; or d)when the trust, being revocable, is expressly revoked. 78. Revocation of trust :-A trust created by will may be revoked at the pleasure of the testator. 78. Revocation of trust :-A trust created by will may be revoked at the pleasure of the testator. A trust otherwise created can be revoked only -a) where all the beneficiaries are competent to contract by their consent; b) where the trust has been declared by a non-testamentary instrument or by word of mouth in exercise of a power of revocation expressly reserved to the author of the trust; or c) where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors " at the pleasure of the author of the trust. " ( 9 ) A perusal of the Deed of Settlement shows that clause (6) would have no application as it envisages a situation where Mr. Shri Bhagwan passes away childless. Clause 5 deals with a situation of Mr. Shri Bhagwan is having both sons and daughters. Mr. Shri Bhagwan did not have any son. The daughters attained majority. There was only one trustee being Smt. Urmila Devi, wife of late Mr. Shri Bhagwan. It is in view thereof that the trust was stated to have achieved its object and was therefore extinguished and through the process of devolution, property forming subject matter of the Trust came into the hands of the three applicants. ( 10 ) LEARNED counsel for the petitioner has drawn the attention of this court to the provisions of Order 22 Rule 10 of the said Code which reads as under:"order 22 Rule 10 procedure in case of assignment before final order in suit 1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may,by leave of the Court,be continued by or against the person to or upon whom such interest has come or devolved. 2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub rule (1 ). 2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub rule (1 ). " ( 11 ) LEARNED counsel for the respondent on the other hand contends that the aforesaid provisions would have no application and it is Order 22 Rules 1 and 2 of the said Code which would apply and thus the application to be impleaded as legal heirs had to be filed within stipulated time or with prayers for condonation of delay and setting aside the abatement. ( 12 ) IN my considered view it is the provisions of Order 22 Rule 10 of the Code which would apply since the proceedings were initially instituted in the name of the Trust. Finally on extinguishment of the Trust it was held that the properties came into the hands of the three applicants being heirs of late Mr. Rai Bahadur Harish Chandra. It is not as if three applicants moved the application to be impleaded as legal heirs in place of Mr. Rai Bahadur Harish chandra so as to invite the provisions of Order 22 Rule 1 and 2 of the said code. The provisions of clause (a) Section 77 of the Trust Act provides for extinguishment of trust when its purpose is completely fulfilled and in terms of clause (a) of Section 78 of the Trust Act, a trust can be revoked when all the beneficiaries are competent to contract by their consent. On the date of extinguishment, both the daughters of late Mr. Shri Bhagwan had attained majority. There was no son of late Mr. Shri Bhagwan for whose benefit the trust could have continued. Smt. Urmila Devi was the wife of late Mr. Shri Bhagwan. It is in these circumstances that the Trust was extinguished and revoked. ( 13 ) LEARNED Tribunal seems to have misunderstood the purpose of referring to the judgment of the learned Single Judge of this court in Smt. Pushpa Kumari v. Deewan Chand Trust; AIR 1983 Delhi 91. The judgment was cited for purposes of the proposition that in an application filed under Order 22 Rule 10 of the said code, not time period is prescribed. The judgment was cited for purposes of the proposition that in an application filed under Order 22 Rule 10 of the said code, not time period is prescribed. It makes no different that the said judgment dealt with a clause where some remaining trustees were sought to be impleaded as plaintiffs along with the trust. The view taken in the said judgment has been followed by the learned Single Judge of this court in Sheela wanti v. Kuldeep Singh and Anr; 100 (2002) DLT 201. ( 14 ) IN view of the aforesaid facts and circumstances, there was no reason for the order of the Additional Rent Controller dated 27. 01. 1998 allowing the application of the applicants filed under Order 22 Rule 10 on 26. 02. 1997 to have been interfered with. ( 15 ) THERE is another aspect to the matter arising from the fact that the respondent has been paying rent to the impleaded parties and rent receipts have been issued. Thus the respondent has accepted them as landlord. I am unable to accept the contention of the learned counsel for the respondent that the same was under a mistake. Be that as it may, the present proceedings is not one of enquiry into the conflicting claims of title. There is no dispute among the heirs/owners. All that is required is the petitioner to be a landlord. The respondent is not claiming any rights in the property other than a tenant. For that reason also no further enquiry would really be required in this behalf. Smt. Urmila Devi passed away during the pendency of this petition and only the two daughters of late Mr. Shri Bhagwan survive as petitioners. ( 16 ) THE impugned order of the Rent Control Tribunal dated 10. 08. 1998 is set aside and of the Additional Rent Controller dated 27. 01. 1998 is restored. The appeal is allowed leaving the parties to bear their own costs.