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2015 DIGILAW 2525 (MAD)

R. Subramanian Chettiar Sembanur Sree Theepainda Amman Trust, Rep. through its Secretary R. Subramanian Chettiar v. Nil

2015-07-15

K.K.SASIDHARAN

body2015
ORDER : The petitioner filed Trust O.P.No.1 of 2013 before the learned District Judge, Sivagangai. The Original Petition was filed to grant permission to sell the property owned by the Trust. The learned trial Judge having found that the petitioner has not produced relevant documents including the resolution passed by the Trust to sell the property and the income tax returns of the Trust, dismissed the application. The said order is under challenge in this revision. 2. The learned counsel for the petitioner contended that the petitioner was not given reasonable opportunity to produce documents. According to the learned counsel, the learned Trial Judge erred in dismissing the application by denying the request to sell the property. 3. The petitioner filed the Trust Original Petition before the learned District Judge, Sivagangai. The petitioner wanted the learned District Judge to grant permission to sell the property appended to the schedule to the Original Petition. 4. The property belongs to a Trust. In an application under Section 34 of the Indian Trusts Act, 1882, the applicant should plead and prove that the property belongs to the Trust, the instrument of Trust permits such sale, the Trust Board took a decision to sell the property, the sale was necessitated on account of certain events and all other relevant circumstances. The Court should be satisfied that the petitioner is entitled to file an application under Section 34 of the Indian Trusts Act. The Court should also be satisfied that a situation has arisen to sell the Trust property. The resolution passed by the Trust Board should be produced before the Court. The petitioner, in such an application, must plead and prove that the instrument of Trust permits the alienation of property. In case there is a specific prohibition against alienation of Trust property, it would not be a sound exercise of jurisdiction to permit the Trustees to sell the property. 5. The jurisdiction conferred under Section 34 of the Act should be exercised by the principal Civil Court of original jurisdiction in the best interest of the Trust. In case there is a specific prohibition against alienation of Trust property, it would not be a sound exercise of jurisdiction to permit the Trustees to sell the property. 5. The jurisdiction conferred under Section 34 of the Act should be exercised by the principal Civil Court of original jurisdiction in the best interest of the Trust. Since the Trustee is acting in accordance with the opinion, advice or direction given by the Court and he is given statutory protection, if acted in good faith, there is an additional responsibility cast on the District Court to see that the permission is granted in accordance with the terms and conditions of the instrument of Trust and in the larger interest of the Trust. 6. Sections 36 and 37 of the Act would further strengthen the position that the Trustee must act only in accordance with the instrument of Trust. The responsibility lies on the Trustees to manage the affairs of the Trust in a judicious manner. The general authority of the Trustee is subject to the restrictions contained in the instrument of Trust. Therefore, it is clear that the Trustee is bound to act in accordance with the instrument of Trust. The Trustee is conferred with general authority to protect the interest of the Trust. The general authority would include proper utilization of Trust property to augment the income of the Trust. It would include the authority to enter into ventures including joint venture for better utilization of Trust property. In short, it would be within the province of the Trustee to take wise decisions keeping in mind the paramount interest of the Trust. 7. While considering an application under Section 34 of the Indian Trusts Act, the Trial Court should sit in the armchair of the founder Trustee. The application should be considered in the light of the terms and conditions of the instrument of Trust. The wishes of the founder Trustee must be given due weight. In short, in case the instrument of Trust wanted the Trust property to be enjoyed in a particular manner, it should be enjoyed in that manner only. 8. The petitioner failed to plead and prove that the Trust is entitled to sell the property. The learned Trial Judge, in his order, very clearly stated that the petitioner failed to produce the accounts to show the financial condition of the Trust. 8. The petitioner failed to plead and prove that the Trust is entitled to sell the property. The learned Trial Judge, in his order, very clearly stated that the petitioner failed to produce the accounts to show the financial condition of the Trust. Similarly, the petitioner failed to produce the resolution authorizing the Trust to sell the property. Since the request is to sell the property, the application should be construed very strictly. There is no question of permitting the Trust property to be sold at the instance of Trustees on a mere asking. The Court has got a definite role to play in a matter of this nature. 9. The learned Trial Judge exercised his jurisdiction conferred on him under Section 34 of the Indian Trusts Act, 1882 and rightly rejected the application. I do not find any error or illegality in the said order warranting interference by exercising the revisional jurisdiction under Article 227 of the Constitution of India. 10. In the upshot, I dismiss the Civil Revision Petition. No costs.