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2009 DIGILAW 723 (BOM)

SANJAY KILACHAND v. SURESH TULSIDAS KILACHAND

2009-06-22

D.G.KARNIK

body2009
ORDER :- Heard learned counsel for the parties. 2. An interesting question that arises for consideration in this petition is: what is the scope and limit of the jurisdiction of the Court to entertain a petition under section 34 of the Indian Trust Act, 1882. 3. One Mr.Tulsidas Kilachand died on or about 21st October, 1976 leaving behind him his last Will and testament dated 25th March 1976. By the Will, after making certain specific bequests, late Tulsidas created a trust of the residue of his estate, including of his undivided share in the property known as "Kilachand House situate at Nepean Sea Road (for short "the said property). The usufruct i.e. income of the said property has been bequeathed to the respondent for life. After the death of respondent, the said property is to be divided amongst his wife and children. Petitioner is one of the sons of the petitioner and therefore claims to have an interest in the said property. According to the petitioner, the respondent is illegally trying to alienate the said property which constitutes breach of the trust. The petitioner has therefore filed the present Trust Petition under section 34 of the Indian Trust Act for an order of permanent injunction restraining the respondents from selling, disposing off, alienating and/or otherwise parting with the possession of the said property and for other incidental relief’s. The respondent has denied the allegations made against him and contests the petition. 4. Counsel for the respondent raised a preliminary objection to the maintainability of the petition. He submitted that the issues that arise in the petition cannot be decided in or by means of a Petition under section 34 of the Indian Trust Act and appropriate remedy for adjudication of the disputed questions is by way of a suit. He submitted that the petitioner may be referred to a regular suit. In support he relied on a decision of this Court rendered in Re Laxmibai, reported in 1888 (Vol.12) ILR 638 and a decision of the Supreme Court in Official Liquidator, WB. vs. Sachindra Nath Chatterjee reported in AIR 1969 SC 823 . 5-6. Section 34 of the Indian Trust Act which provides for filing of an application (which as per practice of this Court is numbered as a Trust Petition), as opposed to a suit, reads as under: 34. vs. Sachindra Nath Chatterjee reported in AIR 1969 SC 823 . 5-6. Section 34 of the Indian Trust Act which provides for filing of an application (which as per practice of this Court is numbered as a Trust Petition), as opposed to a suit, reads as under: 34. Right to apply to Court for opinion in management of trust-property - Any trustee may, without instituting a suit, apply by petition to a principal civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court of summary disposal. A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit. The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application. The costs of every application under this section shall be in the discretion of the Court to which it is made. 7. Bare reading of section 34 makes two things clear. (i) An application or a petition under section 34 can be filed only by a Trustee and not by a beneficiary or any other person. (ii) Jurisdiction of a Court under section 34 is in the nature of an advisory jurisdiction. The Court gives an opinion, advise or a direction in respect of the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court of summary disposal. In my view in a petition under section 34 the Court cannot pass an order at the instance of a beneficiary against trustees preventing a breach of trust. For such a cause appropriate remedy would be a regular suit. I am fortified in my view by a decision of Lahore High Court in Tara Chand vs. Harnam Singh and anr., reported in AIR 1928 Lahore 237(2). For such a cause appropriate remedy would be a regular suit. I am fortified in my view by a decision of Lahore High Court in Tara Chand vs. Harnam Singh and anr., reported in AIR 1928 Lahore 237(2). The Lahore High Court held that a beneficiary who had a right to compel a trustee to perform any particular act or to restrain him from committing any contemplated or probable breach of trust could not move the Court under sections 61/49 of the Trusts Act of 1882 in a summary manner. The beneficiary would be required to file a suit for enforcement of his rights. 8. Decision of this Court in Re Laxmibai, widow and administrator of Vinayakrao Jagannath Shankar Shet, reported in 1888 (Vol.12) Indian Law Reports 638 is also relevant. There the Court was concerned with the powers of the High Court under section 43 of the Trustees' and Mortgagees' Powers Act (Act No. xxvii of 1866) which reads as follows: 43. Any trustee, executor or administrator shall be at liberty, without the institution of a suit, to apply by petition to any Judge of the High Court for the opinion advice or direction of such Judge on any question respecting the management or administration of the trust-property or the assets of any testator or intestate. Such application shall be served upon, or the hearing thereof shall be attended by, all persons interested in such application, or such of them as the said Judge shall think expedient. The trustee, executor or administrator acting upon the opinion, advice or directing given by the said Judge shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor or administrator in the subject-matter of the said application. Provided, nevertheless, that this Act shall not extend to indemnify any trustee, executor of administrator, in respect of any act done in accordance with such opinion, advice or direction as aforesaid, if such trustee, executor or administrator shall have been guilty of any fraud or wilful concealment or misrepresentation in obtaining such opinion, advice or direction; and the costs of such application as aforesaid shall be in the discretion of the Judge to whom the said application shall be made. Provisions of section 43 of the Trustees and Mortgagees Powers Act are more or less similar to section 34 of the Indian Trust Act. Provisions of section 43 of the Trustees and Mortgagees Powers Act are more or less similar to section 34 of the Indian Trust Act. While interpreting section 43 of the Trustees and Mortgagees' Powers Act 1866, this Court held: "Under that section the trustees may apply without instituting a suit, to any of the Judges of the High Court for his opinion, advice or direction, or by acting on such opinion, the trustee is deemed to have properly discharged his duty. Obviously, the Court under such circumstances must act with caution, and only advise in matters when the rights of the properties inter-se are not in dispute either in law or in fact." (Emphasis supplied) 9. The decision of the Supreme Court in Official Trustee, West Bengal and ors. vs. Sachindra Nath Chatterjee and anr., AIR 1969 SC 823 is more to the point. In paragraph No. 17 of the decision, the Supreme Court has observed: The jurisdiction conferred on the Court under section 34 is a limited jurisdiction. Under that provision, the Court has not been conferred with overall jurisdiction in matters arising under a Trust deed. The statute has prescribed what the Court can do and inferentially what it cannot do. From the fact that the Court has been conferred power to grant only certain reliefs it follows as a matter of law that the Court has been prohibited from granting any other relief. The jurisdiction of the Court is circumscribed by the provisions of section 34 of the Trust Act. The Court hap no jurisdiction to pronounce on the pleas put forward by the settlor. From the facts stated in the petition and from the relief asked for, it was obvious that the case did not come within the scope of section 34 of the Trust Act. 10. Section 34 of the Indian Trust Act empowers the trustee "without instituting the suit" to apply to the Court for its opinion, advice or direction. The words "without instituting the suit" appearing in section 34 are material. The normal rule of law is that for any infringement of any civil right the person aggrieved is entitled to file a suit. This normal rule is only partially modified by section 34 of the Indian Trust Act which empowers the trustees to make an application to the Court without filing of a suit. The normal rule of law is that for any infringement of any civil right the person aggrieved is entitled to file a suit. This normal rule is only partially modified by section 34 of the Indian Trust Act which empowers the trustees to make an application to the Court without filing of a suit. The power to make an application under section 34 of the Indian Trust Act is clearly circumscribed only in respect of the matters specified in section 34 i.e. where an opinion, advice or direction of a Court is sought relating to present questions respecting the management or administration of the trust property, other than the questions of detail, difficulty or importance. In a given case, the trustees may be in. doubt whether under the trust deed they can or cannot do a certain thing. The trustees may then seek an opinion from the Court on that issue. Section 34 enables the Court to give an opinion, advice or direction by holding summary enquiry. Complicated issues involving rights of the parties especially when a dispute is raised by a beneficiary alleging breach of trust are incapable of summary decision and cannot be decided by an application under section 34 of the Indian Trust Act. 11. Ms. Rajani Iyer, learned counsel for the applicants referred to section 59, 60 and 61 of the Indian Trust Act and submitted that where the rights of beneficiaries were violated. They would have a right of action. This cannot be disputed. The beneficiary would have a cause wherever there is a breach of trust but the question is in what manner the cause is to be agitated; whether a beneficiary can agitate the cause by means of a petition under section 34 of the Indian Trusts Act or has to resort to a suit. The illustrations given below section 60 indicate that a suit may be instituted for any of the rights covered by section 59, 60 and 61. The person who has a cause can certainly file a suit but, in my view, cannot merely file an application/petition in respect of matters not covered by section 34 of the Indian Trust Act. 12. The illustrations given below section 60 indicate that a suit may be instituted for any of the rights covered by section 59, 60 and 61. The person who has a cause can certainly file a suit but, in my view, cannot merely file an application/petition in respect of matters not covered by section 34 of the Indian Trust Act. 12. Learned counsel for the petitioner then submitted that the present Trust Petition may be treated as an originating summons under Rule 238 of the Bombay High Court (Original Side) Rules and the petitioner may be granted the permission for conversion. Apart from the fact that procedurally it would not be appropriate to allow such conversion even otherwise I am not inclined to grant the permission. Rule 249 of the Original Side Rules states that the originating summons shall be in Form No. 23 and shall not contain a prayer and relief which is sought by an originating summons. The present petition is not in the Form No. 23 but is in a form which is similar to an ordinary plaint and contains a prayer of injunction. Ordinarily an originating summons is decided in a summary manner and is expected to deal with matters which are not seriously contested and where there is no dispute of facts. In the present case, there are serious disputes of facts and that dispute cannot be resolved in a summary enquiry but would require in full fledged trial in a suit. The permission for conversion is refused. 13. Learned counsel for the petitioner submitted that the interim order which has been passed earlier be continued for some time to enable the petitioner to take appropriate steps. Mr. Bharucha strongly objects for continuation of the interim orders. In my view, since the interim order is in operation for several months in the past, it would be appropriate to extend it for some time. Accordingly, I direct that interim order shall remain in force for a period of two weeks. Order Accordingly.