HON’BLE Dr.JUSTICE B.

SIVA SANKARA RAO

Civil Revision Petition No.5994 of 2017

ORDER

The revision petitioners 1 to 3 are the respondents in

O.P.No.114 of 2008, that was filed u/ss. 70, 71 and 77(B) of the

Indian Trust Act, 1882( for short,’ the Act’) by the revision sole

respondent-Venkatrao Memorial Trust rep. by its Trustee and legal

heir Nishit Halwalkar.

2. The averments in the main petition in nutshell are that it

is a Trust constituted and registered under the Indian Trust Act,

vide registered certificate No.2616 on 21st Amadard 1350 fasli. The

petitioner-Trust shows represented by its Trustee and legal heir Sri

Nishit Halwalkar, the so called grandson of the alleged creator of

the Trust by name late Gunderao Pampad. The Trust was created

by donating house bearing No.494 at Laldarwaza, Agricultural land

at Nandigam village at Alwal with four members

viz;Hanumantharao Saheb Vakil, Sri Janardhan Rao Saheb, Sri

Gunde Rao Saheb Halwalkar and D.Rama Rao Saheb Joshi. The

further averments show that as per the desire of the Founder-late

Gunderson Pampad, a primary school in Kannada medium was

established at Shah Ali Banda in the name of Venkata Rao on the

amount donated by Sri Pampad and as per Clause-8 of the Trust

Deed, a male member of Gunderao Halwalkar family shall

compulsory be a Trustee and Nishit Halwalkar being the grandson

of Gudnerao Halwalkaar is thereby representing it saying earlier he

was in abroad and only in September, 2006 he returned and

staying in Bangalore and revision petitioners 1 to 3 are claiming to

be a Managing Committee Members of the School viz: Venkat Rao

    

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Memorial Trust. It is further averred that they without any power

or authority, registered a supplementary Trust vide No.512 of 2005

by deed dated 26.11.2005 saying the version therein are untrue

and without any competence from even terms of the original Trust

deed. It is the claim therefrom to declare the Trust deed created

by Respondents 1 to 3 vide No.512 of 2006 dt. 26.11.2005 as

unlawful and illegal and consequently to declare the Trust created

by the petitioner vide deed No.294 of 2007 dt.12.09.2007 as lawful.

3. The respondent No.1 to the main petition supra filed

counter opposing the petition claim and the respondents 2 and 3

adopted the same. The contentions in their counter are that the

allegations in the petition are false and baseless and the petitioner

is not entitled to the so called relief of declaration with

consequential relief sought for, that he has no locus standi to file

the petition based on the alleged Trust deed, dt.12.09.2007 which

is also void in the eye of law being against the provisions of the Act,

and the petition is thereby liable to be dismissed. It is also averred

that there are other proper and necessary parties if at all to be

impleaded to declare the Trust Deed Dated 26.11.2005 bearing

No.512 of 2005 as invalid and the petition is liable to dismissed

thereby for non-joinder of such necessary parties particularly the

registered society. It is also specifically denied respective

averments in the main petition in the respective paras-4 to 7 of the

counter but for to say that the petitioner hails from the family of

Gunderao Halwalkar. It is further averred particularly in paras 8 and

9 of the counter that the so called Trust created by the petitioner is

even contrary to the provisions of the Act and Section 74 of the Act
    

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is not of any avail and the Court has no jurisdiction to entertain the

main petition and thereby same is liable to dismissed.

4. It is during the pendency of the main matter for enquiry

since 2008, the respondents filed I.A.No.152 of 2013 under Order 7

Rule 11 CPC for rejection of the main petition supra on 09.07.2012

with the supporting affidavit of the 1st respondent by reiterating

those averments of the counter referred supra which no way

requires repetition by referring to the prayer in the petition and by

saying the trial Court lacks inherent jurisdiction to grant the reliefs

as prayed for in the main petition apart from the requirement of

advolerum Court fee and the provisions of Sections 70,71 and

77(B) of the Act no way provide for the so called declaratory relief

sought for and thereby the petition is not maintainable under law

and it is to be rejected or dismissed therefrom.

5. The counter filed by the OP petitioner in opposing the

petition for rejection of main petition sought for is that, the Court

got jurisdiction and various averments in the affidavit petition are

untrue by reiterating the main petition averments to some extent.

6. In the course of hearing the respective learned counsel

reiterated their respective pleas as above and drawn attention of

the Court to the provisions of the Act.

7. Heard both sides at length and perused the provisions of

the Act and material on record.

8. Before going to the provisions of the Order VII Rule 11 (a

to f) CPC, particularly clause-a and clause-d of it as to whether the

plaint does not disclose a cause of action or where the suit appears
    

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from the statement in the plaint barred by any law for rejection, it

is relevant to refer scope and objects and some of the provisions of

the Act. it speaks from its statements, objects and the reasons that

trusts, though unknown to Hindu and Mahammadian laws as legal

and equitable estates, in the wider sense trust is nothing but

obligations annexed to the ownership of property which arise out of

confidence reposed in and accepted by the owner for the benefit of

another, are constantly created and are frequently enforced by the

Courts in India. It refers to the position of dominion over property

coupled with the obligation to use is, either wholly or partially, for

the benefit of other than the possessor, which is even otherwise

recognized in the uncodified Hindu law like Endowment, leave apart

even in Mahammadian law like Wakf. It is mentioned that the

object of the enactment is to codify the law relating to Trusts is

without touching Mahammadian law as to Wakf and for Hindu law

as to endowment (religious and charitable), as the case may be of

Hindus, Buddists etc.

9. The Act mainly deals with private Trusts and Trustees.

Chapter I is preliminary. Chapter II from Sections 4 to 10, deals

with creation of Trusts. Chapter III Sections 11 to 30 deals with the

duties and liabilities of Trustees, Chapter IV Sections 31 to 45 deals

with rights and powers of Trustees, Chapter V Sections 46 to 54

deals with disabilities of Trustees and Chapter VI Sections 55 to 69

deals with the rights and liabilities of beneficiaries. Apart from the

above, Chapter-7 Sections 70 to 76 deals with vacating the office of

Trustee which include as to appointment of Trustee by Court and

survival of Trust, Chapter-8 Sections 77 to 79 deals with extinction

    

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of Trust by revocation or otherwise and ultimately Chapter-9

Sections 80 to 96 deals with certain obligations in the nature of

Trusts. The Act contains the Schedule which refers to the extent of

repeal of Sections 7 to 11 of the statute of frauds, Trustees' and

Mortgagees 'Powers Act, 1886, illustration I of Section 12 of the

Specific Relief Act, 1877 which are not now necessary to go into but

for Sections 6 to 10, 59, 70 to 76.

10. The very Act speaks itself to define and amend the law

relating to Trust and Trustees. It is the definition to say public

Trusts ‘religious and/or charitable’ are not governed by the

provisions of the Act that is also reiterated in the 3 Judge Bench

expression of the Apex Court in Canbank Finance Services Vs.

The Custodian and others1 in dealing with the concept of Trust

and Trustees by referring to some of the provisions of the Indian

Trust Act and Transfer of Property Act in particular.

11. Sections 4 and 6 of the Act speaks that creation of Trust

must be for lawful purpose and is subject to the provisions of

Section 5 i.e. (Trust of immovable property) to be validated must

be by a non-testamentary instrument in writing duly registered by

signing by the author of the Trust or the Trustee or by the will of

the author of the Trust or the Trustee. Section 6 further speaks that

a Trust can be created when the author of the Trustee indicates

with reasonable certainty by any words or acts:-

a) An intention to create and thereby a Trust,

                                                            

 2004 8 SCC 355 

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b) the purpose of the Trust,

c) the beneficiary,

d) The Trust property and (unless the Trustee is declared by

will or the author of the Trust himself is the Trustee)
transfers the Trust property to the Trustee.

12. Every person competent to contract and with permission

of the Principal Civil Court of original jurisdiction by or on behalf of

the minor subject to law for the time being in force as to the

circumstances and extent in and to which the author of the Trust

may dispose of the Trust property. The subject matter of the Trust

as per Section 8 must be property transferable to the beneficiary

for it must not be merely beneficial interest under a subsisting

Trust. Every person capable to hold the property may be a

beneficiary as per Section 9, unless the proposed beneficiary may

disclaim or renounce. So far as the Trustees concerned. Section 10

says every person capable of holding property may be a Trustee;

but, where the Trust involves exercise of discretion, he cannot

execute it unless he is competent to contract.

13. From this, coming to Section 59 of the Act, on right to sue

for execution of Trust; it speaks that where no Trustees are

appointed or all the trustees die, disclaim, or are discharged or

where for any other reason the execution of Trust by the Trustee is

or becomes impracticable, the beneficiary may institute a suit for

the execution of the Trust, and the Trust shall, so far as may be

possible, be executed by the Court until the appointment of a

trustee or new trustee. Section 60 also relevant along with Section

61 to some extent which speak that, the beneficiary has a right to

    

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say that the Trust property shall be properly protected and held and

administered by proper persons and by a proper number of such

persons and the beneficiary has a right that his trustee shall be

compelled to perform any particular act of his duty as such, and

restrained from committingany contemplated or probable breach of

trust.

14. Now coming to Sections 70 to 79, Section 70 speaks, the

office of a Trustee is vacated by his death or by his discharge from

his office; Section 71 deals with discharge of Trustee in the

specified six contingencies; Section 72 speaks on persons to be

discharged from his office of Trust that a Trustee may apply by

petition to a Principal Civil Court of original jurisdiction to be

discharge from his office to consider if sufficient reason; Section 73

speaks on appointment of a new Trustees on death in his place by

a) the person nominated for that purpose by the instrument of

Trust (if any) or b) if there be no such person, or no such person

able and willing to act, the author of the Trust if he be alive and

competent to contract, or the surviving or continuing trustees or

trustee for the time being, or legal representatives of the last

surviving and continuing trustee, or (with the consent of the Court)

the retiring trustees, if they all retire simultaneously, or (with the

like consent) the last retiring trustee.

15. Appointment by Court as referred above in Section 73 of

the Act, is covered by Section 74 of the Act, which speaks that

wherever any such vacancy or disqualification occurs and it is found

impracticable to appoint a new trustee u/sec.73, the beneficiary

may, without instituting a suit, apply by petition to a principal civil

    

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court of jurisdiction for the appointment of a trustee or a new

trustee, and the Court may appoint a trustee or a new trustee

accordingly. It also speaks of the Court shall have regard a) to the

wishes of the author of the Trust as expressed in or to be inferred

from the instrument of trust; b) to the wishes of the person, if any,

empowered to appoint new trustees; c) to the question whether the

appointment will promote or impede the execution of the Trust; and

d) whether there are more beneficiaries than one, to the interests

of such beneficiaries.

16. With this background coming to the necessity of applying

the law to apply to the facts of the petition claim on its

sustainability; but for Sections 59, 60,61,73 and 74 referred supra

to the extent of filing suit or application for appointment of a

trustee as per the wishes of the founder or person who is

authorized to appoint or nominee trustee, as the case may be, in

furtherance of the Trust, to continue to be considered by the Court

neither Section 70 nor Section 71 nor Section 77 of the Act, enables

the petitioner to claim relief for the declaration of petitioner to the

so called Trust of 2007 and consequently to declare him as valid

Trustee to act much less to declare the so called Trust allegedly

created by the Respondents 1 to 3 on 2005 as invalid.

17.As referred supra, from the provisions at best the remedy

of the petitioner if at all is, if not by a suit by an application

invoking the doors of the Principal Civil Judge of original jurisdiction

to say for more clarity, the District Judge or the Chief Judge of the

City Civil Court, as the case may be, for appointing him or any

other person as a Trustee so that the Court can consider from

    

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availability or not of the required considerations provided by

Section 74 of the Trust Act referred supra.

18. Once such is the case, the very petition is barred by law

and thus the petitioner cannot get any relief and thereby

continuation of the claim is nothing but wasting the valuable time of

the Court and putting ordeal of facing trial by respondent and

thereby suffice to say the petition is prone for rejection as per the

settled expression of the Apex Court in Arivandandam Vs.

T.Satyapal2

19. Accordingly and with these observations, the revision is

allowed setting aside the dismissal order of the lower Court, in

I.A.No.152 of 2013, dt. 09.10.2017, however with the observation

that the existing status quo shall continue for one month from date

of receipt of the order and in the meantime, the revision petitioners

or respondent if at all wants to invoke the powers of the principal

District Court or the Chief Judge, City Civil Court, as the case may

be, they can. The trial court shall return the documents to the

respective parties by virtue of this order so that they can avail all

available legal remedies.

20. Consequently, miscellaneous petitions, if any, pending in

this revision shall stand closed.

_________________________
Dr. B.SIVA SANKARA RAO J,

Date:16.11.2017
vvr  

                                                            
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 (1977) 4 SCC 467