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In Re: Dhanalal Karnawat and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtKolkata High Court
Decided On
Case NumberMatter No. 291 of 1973
Judge
Reported inAIR1975Cal67
ActsTrusts Act, 1882 - Section 34; ;Charitable and Religions Trusts Act, 1920 - Sections 7 and 36; ;Code of Civil Procedure (CPC) , 1908 - Section 92
AppellantIn Re: Dhanalal Karnawat and anr.
Excerpt:
- .....for selves and for their co-trustee, surpat singih karnawat for leave to grant lease of the trust property being the premises no. 46. sir hariram goenka street, calcutta-7 for a period of twenty five years with further option to renew it for twentyfive years to one sumanlal parekh and others on the terms and conditions contained in paragraph 19 of the petition.2. it appears from a copy of the deed of trust dated 9th october, 1950 annexed to the petition that the said property no. 48, banstolla street now no. 48, sir hariram goenka street in calcutta be conveyed and transferred to the trustees to be used for ever as a dharamsala for free accommodation and lodging of only hindu visitors and travellers in accordance with such rules and regulations as may from time to time be made or.....
Judgment:

A.K. Sarkar, J.

1. On April 11, 1973 an ex parte application was moved in Chambers by Dhanalal Karnawat and Bijoy Singh Karnawat, the trustees for selves and for their co-trustee, Surpat Singih Karnawat for leave to grant lease of the trust property being the premises No. 46. Sir Hariram Goenka Street, Calcutta-7 for a period of twenty five years with further option to renew it for twentyfive years to one Sumanlal Parekh and others on the terms and conditions contained in paragraph 19 of the petition.

2. It appears from a copy of the deed of Trust dated 9th October, 1950 annexed to the petition that the said property No. 48, Banstolla Street now No. 48, Sir Hariram Goenka Street in Calcutta be conveyed and transferred to the trustees to be used for ever as a Dharamsala for free accommodation and lodging of only Hindu visitors and travellers in accordance with such rules and regulations as may from time to time be made or framed by the trustees. The said Dharamsala shall be named 'Lakhmichand Karnawat DharamsaLa' which shall not be changed at any time. The trustees shall be at liberty to let out or demise such portion or portions of the trust property as they in their discretion shall think fit and out of the income thereof to pay in the first place all rates, taxes, ground rent and other outgoings and impositions which now are and may hereafter be payable in respect thereof and in the next place pay all costs and expenses for keeping the trust property in good and substantial repair and apply the balance for the objects and purposes of the trust and for defraying all expenses for the management of the said Dharamsala and the Trust property.

3. The said trust property is in dilapidated condition and the trustees have neither any income therefrom nor any fund to construct a habitable building for Dharamsala hence they made the said application in Chambers before me for leave to grant long term lease of the said property No. 48, Sir Hariram Goenka Street. Calcutta. The application was made under Section 34 of the Indian Trusts Act. 1882 and after hearing the attorney for the said applicants order was made by me granting leave to the trustees to grant lease of No. 48, Sir Hariram Goenka Street, Calcutta for twentyfive years with option to renew the same for a further period of twentyfive years to Sumanlal Parekh and others or to such other persons having immovable properties worth not less than Rs. 12 lacs on terms and conditions inter alia as contained in paragraph 19 of the petition.

4. The instant application has been made by one Vijoy Laxmi Brothers, a registered partnership firm with whom it is alleged that the trustees had already and prior to the proposed lease in favour of Sumanlal Parekh and others entered into an agreement for lease of the said trust property contained in the letter dated 25th May. 1972 and confirmed by the trustees by their letter dated 27th May, 1972; for inter alia recalling and/or setting aside the said order made by me on 11th April, 1973 for injunction restraining the said trustees from taking any further step in reliance upon the said order dated April 11, 1973, for stay of completion and filing of the said order, for leave to the petitioner to make this application.

5. The first point taken by the applicant in the instant application is that since the Trust is a Religious and Charitable Trust, the said application by the trustees in which the order was made on April 11, 1973 under Section 34 of the Indian Trusts Act was not maintainable and that this Court had no jurisdiction to pass an order under the same.

6. The provisions of Section 34 of the Indian Trusts Act are similar to those of Section 7 of the Charitable and Religious Trusts Act. The impugned order was made on llth April, 1973 on the application where in the cause title mention was made of Section 34 of the Indian Trusts Act. Apart from the said mention of Section 34 there was nothing to show that the application was not made under Section 7 of the Charitable and Religious Trusts Act. The application in effect was made by the trustees seeking a direction from this Court to grant lease of the Trust property No. 48, Sir Hariram Goenka Street, Calcutta. As a matter of fact in the Charitable and Religious Trusts Act there are no provisions similar to those contained in the latter portion of Section 36 of the Indian Trusts Act. Therefore in this respect the provisions in the Trusts Act should be followed. In a case reported in AIR 1941 All 387, the Bench decision presided over by the Chief Justice Iqbal Ahmad has been that though the Indian Trusts Act does not apply to [public or private religious charitable endowments, but nevertheless the principles underlying the sections served as useful guide. The sections mentioned in the said case were of course Sections 44 and 76 of the Indian Trusts Act.

7. It does not seem to me that by the mention of Section 34 of the Indian Trusts Act in the cause title of the said application any injustice has been done by the said order dated 11th April, 1973 to the public trust. The objection there-fore is technical and is overruled.

8. The next point is that the said application was made by two of the trustees and as the other trustee, Surpat Singh Karnawat did not join in the -said application, the said application was not maintainable. I do not agree with the contention. The lease provides that the number of trustees shall be three but preceding the appointment of any new trustee two trustees shall be competent to act. But the said application was made by two trustees for selves and for the other co-trustee, Surpat Singh Karnawat. There is no substance in the said objection.

9. The next abjection is that the Trust being Public Charitable Trust the notice of the said application was not given to the Advocate-General of West Bengal. In my view the provisions of Section 92 of the Code of Civil Procedure are not strictly applicable to the application of the nature made before me for simple direction to grant long term lease of the Trust property.

10. The petitioner is not a Hindu visitor or traveller nor is affected by the order dated 11th April, 1973. If there is a valid agreement between the petitioner and the trustees regarding the lease of the Trust property, the petitioner has remedies in law and I am told that they have taken steps for enforcement of the said agreement for lease. By the said order dated 11th April, 1973 no injustice has been done to the Public Trust. In the premises I make no order on this application. Interim order is vacated. The operation of this order is stayed till 18th December, 1973. Certified for 2 counsel as against respective clients.


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