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L. Madho Ram and anr. Vs. Jai Chand Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1935All360; 155Ind.Cas.933
AppellantL. Madho Ram and anr.
RespondentJai Chand Rai and ors.
Excerpt:
- - it has confined its attention to a consideration of the applicability of section 307, succession act, and on that consideration alone has failed to exercise jurisdiction. the case relied on by the respondents is therefore clearly distinguishable. at the same time we are not satisfied whether the order of the learned district judge dated 17th august 1931 was passed under section 7, religious and charitable trusts act, or under section 307, succession act......sold on 14th october 1931.2. on 28th november 1931 jai chand rai and others applied to the learned district judge that:the order dated 17th august 1931 be set aside and proper directions for the due administration of the trust be ordered and the damages resulting from misfeasance of the trust be recovered from the security of the trustees or any other suitable order be passed.3. this application was opposed by one lala madho ram who was also mentioned as a trustee in the will of mt. kasturi. later on col. goyel made an application on 20th february 1933 by. which he prayed for permission to sell certain other properties mentioned in the will of mt. kasturi bau the learned district judge considered these two applications on 11th april 1933 and came to the conclusion, that the.....
Judgment:

Bajpai, J.

1. This is an appeal from an order of the District Judge, Saharanpur, dated 11th April 1933, by which he purported to dispose of two applications, one dated 28th November 1931 by Jai Chand Rai and others and the other dated 20th February 1933; by Col. D.P. Goyel. The facts of the case are that one Mt. Kasturi. executed a will on 20th March 1920 by which she gave certain directions, regarding her property. On 1st August 1931 Col. Goyel who had obtained probate of the will of his wife, Mt. Kasturi, applied for the sale of certain immovable property covered by the will. Permission was granted to Col. Goyel on 17th August 1931 and we have been informed that in pursuance of the permission the property was actually sold on 14th October 1931.

2. On 28th November 1931 Jai Chand Rai and others applied to the learned District Judge that:

the order dated 17th August 1931 be set aside and proper directions for the due administration of the trust be ordered and the damages resulting from misfeasance of the trust be recovered from the security of the trustees or any other suitable order be passed.

3. This application was opposed by one Lala Madho Ram who was also mentioned as a trustee in the will of Mt. Kasturi. Later on Col. Goyel made an application on 20th February 1933 by. which he prayed for permission to sell certain other properties mentioned in the will of Mt. Kasturi Bau The learned District Judge considered these two applications on 11th April 1933 and came to the conclusion, that the application of Col. Goyel was under Section 307, Succession Act, which' section was not at all applicable inasmuch as 'permission to transfer is not asked in this case in order to pay debts and legacies.' He therefore-refused the application of Col. Goyel. dated 20th February 1933 and at the same time set aside the order of 17th August 1931 which he considered to be an ex parte order.

4. In this appeal it is contended before us that the learned District Judge had erred in holding that it had no jurisdiction to grant the permission sought for. It is true that it has beer reiterated before us that Section 307, Succession Act, is applicable to the present case, but as arguments have proceeded before us on the assumption that the learned District Judge has got jurisdiction under other provisions of law to grant the permission sought for, we have got to see whether such jurisdiction exists in the District Judge or not. Our attention has been drawn to Section 7, Charitable and Religious Trusts Act, (14 of 1920) and there cannot be the slighest doubt that a trustee of an express or constructive trust created or existing for a public purpose of a charitable or religious nature can apply by petition to the civil Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion advice or direction of the Court or any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon. The Court below has not considered whether the application of Col. Goyel could be treated under Section 7 of the Act or not. It has confined its attention to a consideration of the applicability of Section 307, Succession Act, and on that consideration alone has failed to exercise jurisdiction. We make it clear that all questions arising under Section 7, Charitable and Religious Trusts Act, are open and Jai Chand Rai and others can agitate the point before the Court below. It must be mentioned that the application of Col. Goyel was not specifically headed as one under Section 307. Succession Act, and it was the duty of the Court to find out whether it had jurisdiction in the matter of the application or not under any provision of law.

5. It was then contended before us that Mr. Mundle, the District Judge, had no jurisdiction to set aside his previous order of 7th August 1931. It is argued that after having passed the order the learned District Judge was functus officio and his order could be set aside, if at all, by a superior authority. The contention of the respondents is that every Court has got inherent jurisdiction to recall an order passed without jurisdiction and reliance is placed upon the case of In the matter of Indrani 1931 All. 212. The facts of that case are slightly different, A learned District Judge had passed certain orders giving permission to the trustees to-sell certain properties and in pursuance of the permission properties had been sold and an application was-made to the successor of the former District Judge to confirm the sales. The learned District Judge before whom the matter came up was of the opinion that Section 307, Succession Act, was not applicable and he therefore dropped the proceedings and refused to confirm the sale. It was held that:

where a Judge for the time being discovers that an order has been passed without jurisdiction either by himself or by his predecessor in office-it is his duty to undo that order so far as it may lie in his power.

6. It was within the competence of the successor to refuse to confirm the sales which had been sanctioned by his predecessor and to that extent he could, if he thought that the order of his predecessor was without jurisdiction, undo the previous order. In the present case there is no question of undoing any previous order so far as it lies in his power. In the present case he has completely set aside his former order dated 17th August 1931 and as we stated before, in pursuance of this order a certain sale has already taken place. The case relied on by the respondents is therefore clearly distinguishable. At the same time we are not satisfied whether the order of the learned District Judge dated 17th August 1931 was passed under Section 7, Religious and Charitable Trusts Act, or under Section 307, Succession Act. It is also clear that that order was passed without reference to a previous order of Mr. Mundle wherein he had refused; permission to sell the self-same property under the self-same circumstances. We are therefore of the opinion that it is desirable that the entire matter should be left open, and the learned District Judge be asked to consider the application of 1st August 1931 after notice to all the parties concerned as if that were an application under Section 7, Religious and Charitable Trusts Act. We therefore allow this appeal, set aside the order of Mr. Mundle dated 11th April 1931 and send back, the case to him to register it on its original number and dispose of it according to law bearing our observations in view. The matters which the Court below will consider are the applications of Col. Goyel dated 1st August 1931 and dated 20th February 1933 and the application dated 28th November 1931 of Jai Chand Rai and others. Parties will bear their own costs of this appeal and costs in the Court below will abide the ever. The appellant is entitled to a refund of court-fees in this Court.


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