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Bholanath Shaw Vs. Badrinath Shaw and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberAdministration Suit No. 1946 of 1968
Judge
Reported inAIR1973Cal524
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantBholanath Shaw
RespondentBadrinath Shaw and ors.
Cases ReferredLal v. National Building Material Supply
Excerpt:
- .....of the trustees and for appointment of a new trustee.2. immediately after the filing of the suit the plaintiff made an application for the appointment of a receiver. an order was made therein that the defendant dhirendranath was to send the periodical statement of accounts in respect of the collections made and the expenditure incurred by him but no order was made for the appointment of receiver. in may, 1969 shreemati dhaneswari, the mother died and the four brothers including the plaintiff became the joint trustees. by an order dated august 26, 1969 her death was recorded and several amendments were allowed. by the said order the plaintiff was also allowed to amend his plaint to claim removal of the three brothers as trustees as also the removal of one bishnu kumari kedar and.....
Judgment:
ORDER

Ramendra Mohan Datt, J.

1. This is an application for amendment of the plaint in an Administration Suit. The suit was filed on July 20, 1968, inter alia, for administration of the trust created by Rambharas Shaw and for accounts against the then trustee, Sreemati Dhaneswari Devi, being the mother of the plaintiff; for accounts against the said trustee as also against his three other brothers who were looking after the trust estate for removal of the trustees and for appointment of a new trustee.

2. Immediately after the filing of the suit the plaintiff made an application for the appointment of a receiver. An order was made therein that the defendant Dhirendranath was to send the periodical statement of accounts in respect of the collections made and the expenditure incurred by him but no order was made for the appointment of receiver. In May, 1969 Shreemati Dhaneswari, the mother died and the four brothers including the plaintiff became the joint trustees. By an order dated August 26, 1969 her death was recorded and several amendments were allowed. By the said order the plaintiff was also allowed to amend his plaint to claim removal of the three brothers as trustees as also the removal of one Bishnu Kumari Kedar and Papia Jaiswal. Originally the plaintiff asked for accounts from the defendant Dhaneswari Devi as also from the said three brothers but later on by that amendment order such accounts were claimed from the said other two persons also viz., Bishnu Kumari Kedar and Papia Jaiswal.

3. Thereafter the plaintiff again made another application for the appointment of a receiver on the ground that proper accounts were not being given and alleged that after the death of Dhaneswari Devi the plaintiff had been wrongfully excluded from the management of the trust estate. It was also alleged that Dhirendra was mismanaging the trust estate. On December 23, 1969 the said application was rejected, inter alia, on the ground that the scope of the charges of mismanagement in the plaint were of limited nature and the same was confined to the period prior to the institution of the suit and further that the contesting defendants viz., the three brothers were not sued as trustees at the time the suit was filed. The plaintiff did not prefer any appeal from the said order but on or about June 29, 1971 made the present application for amendment of the plaint.

4. In the present application the plaintiff seeks to incorporate in the plaint the various facts which occurred subsequent to the death of the deceased trustee Shreemati Dhaneswari Devi. Various new acts of mismanagement have been complained of and it is further alleged that by collusion and conspiracy the said three brothers along with the said Bishnu Kumari Kedar and Papia Jaiswal had been trying to exclude the plaintiff from participating in the management and affairs of the trust estate. Several particularshave been sent out in the proposed amendments but most of them relate to the period subsequent to the death of the said Smt. Dhaneswari Devi. One of such particulars related to the granting of a lease for 99 years by Dhirendra in the year 1967. This is the only fact which is said to have occurred prior to the institution of the suit.

5. Mr. Chatterjee in opposing this application contends that regarding the granting of the said lease the petition does not mention anything relating to such granting of such lease and accordingly, whether such fact is correct or not cannot be ascertained from the records herein. Even the copy of the plaint which is annexed to the petition and which shows the proposed amendment does not contain the proposed verification clause to ascertain whether the said fact of granting of lease would be verified as true to knowledge or not. Mr. Gupta appearing on behalf of the petitioner could not show any such averment in the petition in respect of the granting of the said lease for 99 years. Regarding the proposed amendment as shown in sub-paragraph (f) of paragraph 12-B (i) of the draft plaint annexed to the petition as shown in red ink, the question arose whether in the absence of any averment in the petition giving ground for such amendment the same could be allowed or not. Regarding the other proposed amendments which have been shown in red ink in the copy of the plaint annexed to the petition, the same relate to the facts and circumstances which occurred after the institution of the suit and after the death of the said Smt. Dhaneswari Devi and it is argued, that if these subsequent events and facts are allowed to be incorporated in the existing plaint, the same will make this plaint an entirely new one.

6. It is contended by Mr. Chatterjee that the suit as originally framed was against the then trustee Smt. Dhaneswari Devi. Upon her death the plaintiff did not think it fit to seek by way of amendment, to incorporate all these facts which related to the period subsequent to the filing of the suit. It is only after the plaintiff's second application for appointment of receiver had been rejected in December 1969, that the plaintiff made the present application on June 29, 1971 obviously with the mala fide intent to make another attempt to get the appointment of a receiver on the basis of the subsequent events.

7. It is contended by Mr. Chatterjee that the plaintiff filed the suit as a beneficiary hut since the death of Sm. Dhaneswari Devi not only the plaintiff but also his three brothers have become the trustees. In other words, the cause of action in the original suit as framed has now totally changed and the sole purpose of the present application is to incorporate facts so that the same might constitute causes of action for the removal of the said three trustees viz. the said three brothers who have become trustees along with the plaintiff since the death of then mother. Mr. Chatterjee contends that the plaintiff asked for the receiver for the second time but he failed. If he would seek to rely on the subsequent facts which happened after the institution of the suit, and since the death of their mother, the plaintiff ought to file a separate suit and in such separate suit the plaintiff could ask for receiver.

8. Mr. Gupta, on the other hand, contends that by the first amendment the scope of the suit has already been enlarged. The prayer for removal of the said trustees had already been granted. The suit is for administration of the trust estate and the prayer for removal of the trustees is only ancillary to the suit for administration. What is now sought to be done is to supply more particulars. Mr. Gupta has relied on a passage in Lewin on Trusts 15th Edition at page 416 which provides :

'In exercising its inherent jurisdiction of removing trustees, the Court has laid down the broad principle that its main guide must be the welfare of the beneficiaries.' Mr. Gupta has also relied on another passage at page 417 which provides :

'In Letterstedt v. Broers, reported in 9 Appeal Cases 371, 386 Lord Blackburn said The jurisdiction of the Court is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.'

There is another passage on which reliance has been placed at the bottom of page 417 as follows :

'The jurisdiction of a Court of enquiry to remove a trustee is ancillary to its principal duty, to see that the trusts are properly executed. And therefore in an administration action the Court will exercise the jurisdiction at any time when it deems it expedient to do so and notwithstanding that the removal of the trustee has not been expressly asked for by the pleadings.'

9. Relying on the above passages Mr. Gupta argues that in this administration suit one of the beneficiaries complained that the trust was being mismanaged and asked for the removal of the trustee. The original trustee against whom complaint was made having died, the application for amendment was made and the same was allowed to incorporate in the plaint the cause of action for removal of the three trustees who came in the place and stead of the original trustee. That relief is now sought to be substantiated by furnishing various particulars of mismanagement. It is not a case of addition of a new cause of action or trying to introduce a different case. The original cause of action that the trust was being mismanaged remained. The pleadings as to the removal of the trustees are already on the record by virtue of the previous order for amendment. All that is sought to be done, now, is to supply fresh materials to satisfy the Court that the mismanagement in respect of the trust still exists.

10. Mr. Gupta has relied on the Supreme Court case of A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in ATR 1967 SC 96. Relying on the said judgment Mr. Gupta argues that it amounts to a different or additional approach to the same facts' and accordingly, the said amendment ought to be allowed.

11. To my mind, this being an administration suit, the incorporation of events as facts in support of this main cause of action should be allowed as a special case hi the interest of the beneficiary or beneficiaries and in view of the fact that the power of the Court in exercising jurisdiction over the trust is wide enough to consider such facts as relevant in deciding this case.

12. To my mind, the argument of Mr. Gupta is of much substance and the fresh materials that are being sought to be introduced by way of amendment amounts merely to an additional approach to the same facts. Such amendment has been allowed in the above case reported in : [1966]1SCR796 (supra). In the case of Rai Charan v. Biswa-nath reported in AIR 1915 Cal 103 which considered the question as to whether the Court might take notice of events which have happened since the institution of the suit and afford reliefs to the parties on the basis thereof, it was held that in exceptional cases such subsequent events might be considered by the Court. In my opinion this is an exceptional case in the facts and circumstances herein, and as such this amendment should be allowed therein.

13. In the case of Jai Jai Ram Mano-har Lal v. National Building Material Supply, Gurgaon, reported in : [1970]1SCR22 even though no reason was furnished in the petition regarding the amendment yet the Supreme Court observed that the Court was not powerless to allow such amendment and, accordingly, in respect of the allegation regarding the trustee's wrongful act in granting long lease, the same may be allowed to be incorporated by way of amendment and I am satisfied, that such amendment should be incorporated.

14. Lastly, Mr. Chatterjee contends that leave under Clause 12 of the Letters Patent is necessary to be obtained because the suit was originally instituted with such leave. Mr. Gupta, on the other hand, makes it clear that he is not pressing for any such leave although the same has been prayed for in the Master's Summons herein. I think I should not decide the question and the point is kept open to be decided at the time of the trial of this suit if Mr. Chatterjee's client is so advised to take such point.

15. I, accordingly make an order allowing such amendment, as prayed for and I make an order in terms of prayers 2, 3 and 4, of the summons. The defendants are given leave to file additional written statement within 10 days from the date of the service of the amended copy of the plaint Such amended copy of the plaint has to be served forthwith after the amendment is incorporated as aforesaid. Additional discovery, if any, by letter within a week from the date of the filing of the additional written statement, if so filed. Inspection forthwith thereafter and the suit is to appear at the top of the appropriate warning list two months' hence. In any event, the plaintiff must pay the costs to the appearing defendants. Certified for counsel.


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