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2008 DIGILAW 244 (JK)

Raju v. Vijay Kumar

2008-06-05

SUNIL HALI

body2008
1. A civil suit has been filed by the appellant seeking declaration that he be declared one of the trustees of Sh. Vinayak Miser Dharmshala Trust, Jammu with permanent prohibitory injunction restraining respondent No. 1 or any other person from taking any decision of management of the trust property to the exclusion of the plaintiff or causing any obstruction thereof. 2. An application for interim injunction was also filed for restraining the defendants not to cause any obstruction to the appellant from managing the affairs of the trust as co-trustee and not to take any decision in agreement with any person with regard to the suit property or compromising their interest. The plaintiff-appellant claims that his right is to be protected as trustee of the property on the basis of will executed by his father Chajju Ram. 3. The brief facts of the case would crystallize controversy involved in the present case. One Vinayak miser had made a Will in respect of estate in the year 1906. Among other things, he expressed desire to establish Dharamshala at Jammu and Varanasi. After his death his wife Sohan Devi made a Will on 25.1.1921. Vide paragraph 11 of the Will she appointed her brothers Pt. Chottu Lal Miser, Pt. Vishwa Nath Padha, besides her daughter in law Raj Devi and grand daughters Sham Devi and Bhagwan Devi as trustees/ executors/ executrix of the will. It was incorporated in the Will that if any of the trustees thereby appointed die or desire to be discharged it shall be lawful for the surviving or continuing trustee or trustees or heirs or executors to appoint new trustee. 4. The probate of the Will was granted by the Calcutta High Court on 13.9.1922. Vide settlement arrived at between the parties in term of which, suit was disposed of and the management of Dharmashalla Jammu was exclusively given to Vishwanath Miser. The said Vishwanath Miser executed Will in favour of Nishikant and Dina Nath as joint trustees. A suit came to be filed under section 92 for removal of Dina Nath as co-trustee. The matter was concluded by the Division Bench of this Court. The Division Bench of this court appointed Shri Chajju Ram and Vijay Kumar as trustees, who were directed to manage the property in right perspective, taking into consideration the sprit and purpose behind the creation of the trust. The matter was concluded by the Division Bench of this Court. The Division Bench of this court appointed Shri Chajju Ram and Vijay Kumar as trustees, who were directed to manage the property in right perspective, taking into consideration the sprit and purpose behind the creation of the trust. The Division Bench also directed that the District and Sessions Judge Jammu shall take accounts of the trust once in a month for that purpose. 5. Thereafter Civil Misc. Petition came to be filed by the present appellant seeking approval of present appellant. It is pertinent to mention here that present appellant who is son of late Chajju Ram was appointed joint trustees with Vijay Kumar. The said application was dismissed by the Division Bench on the ground that there was no lis pending in the court. 6. The appellant claims that being lineal descendant of the original trustee Chajju Ram, he be declared trustee by succession. It is important to mention here that the respondent happened to be son of Dina Nath and descendant of the family of trustee. Chajju Ram was tenant, who claimed to be trustee by various nominations on the Will executed by Dina Nath. The Division Bench dismissed the application on 19.11.2004 and directed that the applicants are well within their right to file appropriate suit in the civil court. It is why the present suit has been filed by the appellant. 7. The defendants-respondents in their written statement have denied the right of the appellant-plaintiffs claim as co-trustee with him. It is submitted that Division Bench of this court has stated that only family members were being appointed as trustees. Since the father of appellant-plaintiff was outsider and jogi by caste, he could not remain as trustee. 8. The interim application of the appellant has also been dismissed by the court on the ground that nature of relief sought in that application was the same as claimed in the main suit. The trial court has also found that the status of the plaintiff-appellant is yet to be determined in the suit, as such, no order of injunction sought by the plaintiff-appellant can be granted. 9. I have heard the learned counsel for the parties and perused the judgments referred by them. 10. The plaintiff-appellant claims to be joint trustee with the respondents being lineal descendant of Chajju Ram. 9. I have heard the learned counsel for the parties and perused the judgments referred by them. 10. The plaintiff-appellant claims to be joint trustee with the respondents being lineal descendant of Chajju Ram. He claims his right as trustee by way of succession. It is being disputed by the defendants-respondents that a person who does not belongs to the family of the trustee cannot claim his right by succession. Reliance is also being placed on the observations made by the Division Bench of this Court in its order dated 19.11.2004. Whether the plaintiff can claim to be trustee with the respondent No.1 being lineal descendant of Chajju Ram is a matter to be decided during the course of trial. 11. The right of the appellant is to be determined by the trial court as to whether he can be permitted to be as co-trustee with the respondent No.1. No relief can be given to the appellant at this interim stage to manage the affairs of the trust. 12. The established principles for grant of preliminary injunction are: (a) Existence of prima facie case, (b) Balance of convenience, and (c) Irreparable injury which will to cause in case the relief is not granted. 13. The plaintiffs title as trustee will be determined by the trial court. If any order of injunction is issued as claimed by the appellant, it will have effect of interfering with management of the trust. Interest of the plaintiff can be safe guarded by directing the defendants to manage the property properly without causing any loss to the same. It is important to mention that the Division Bench of this court has already directed the District Judge, Jammu to supervise the accounts of the trust once in a month. The trial court has also directed the defendants not to encumber and alienate the trust property in any manner whatsoever it is will be rightfully determined in the main suit. I accordingly hope that no irreparable injury will cause to the appellant-plaintiff in case injunction is refused. 14. In view of the above, this appeal is dismissed. The parties are directed to appear before the trial court on 2.7.2008. 15. The record of the trial court be send back. CMP is also disposed of.