Delhi District Court
Lt. Gen. C.K. Kapur (Retd.) & Ors. vs . Guruji Ka Ashram & Ors. on 31 August, 2018
Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
IN THE COURT OF MS. JYOTI KLER, ADDL. DISTRICT JUDGE-
05, ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
C.S. No. 8387/16
Case ID No. DLST01-000038-2007 Digitally
signed by
In the matter of:
JYOTI JYOTI KLER
Date:
1.Brig. P.P. Saini (Retd.) S/o Sh. Shyam Lal Saini KLER 2018.09.04 17:36:33 R/o 1/216, Jal Vayu Towers +0530 Sector 56, Gurgaon, Haryana
2. Sh. Gopal Sethi S/o Late F.C. Sethi R/o B-10/7184, Vasant Kunj, New Delhi - 110070
3. Sh. Ajay Vikram Singh, IAS (Retd.) S/o Late Onkar Singh Bagh Suri House Jaipur Road, Ajmer Rajasthan .............Plaintiffs Versus
1. Guruji Ka Ashram A Public Charitable Trust Having its Registered office at Villa-E, Empire Estate, Sultanpur, Mehrauli, New Delhi Through CS No.8387/16 Page 1 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
Sh. Mast Ram (Trustee)
2. Sh. Mast Ram S/o Late Sh. Channan Singh Trustee - Guruji Ka Ashram Villa-E, Empire Estate, Sultanpur Mehrauli, New Delhi
3. Sh. Navdeep Singh S/o Sh. Roop Singh Trustee - Guruji Ka Ashram Villa-E, Empire Estate, Sultanpur Mehrauli, New Delhi ..............Defendants Date of Institution : 17.08.2007 Date of Reserving the Judgment : 08.05.2018 Date of Pronouncement : 31.08.2018 Decision : Dismissed Judgment
1. This Suit is instituted under Section 92 of the Code of Civil Procedure, 1908, initially by four persons, with leave of the Court, granted vide order dated 21.11.2007. One of these four plaintiffs i.e. Lt. Gen. C. K. Kapur moved an application on 04.09.2017 for deletion of his name from the array of parties. The said application was allowed on 24.07.2018.
2. The defendant no.1 is a registered Public Charitable Trust CS No.8387/16 Page 2 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
(hereinafter referred as "the trust") created by Late Sh. Nirmalji (popularly known as "Guruji" and shall be referred as "settlor" hereinafter), by executing a trust deed dated 14.05.1999 (hereinafter referred as "the trust deed"). Defendant no. 2 is the father of settlor and Defendant no.3 is his nephew.
Admitted Facts of the Case
3. Settlor had appointed himself and his mother, Late Smt. Surjit, as first trustee of the Trust. She expired on 10.05.2001 and to fill up the vacancy, Settlor appointed his father i.e. defendant no.2 as additional trustee vide a Trust (Amendment) Deed dated 11.01.2007. Settlor left for heavenly abode on 31.05.2007. Defendant no.2, the sole surviving trustee, appointed defendant no.3 as co-trustee, with effect from 05.06.2007 by amending the trust deed.
4. The trust deed, Trust (Amendment) Deed dated 11.01.2007 whereby defendant no.2 was appointed as Additional Trustee after demise of First Trustee Smt. Surjit, and the Trust (Amendment) Deed dated 05.06.2007 whereby defendant no.3 was appointed as additional trustee, are admitted by either party and are Ex.P-1 to Ex. P-3 respectively. The amendment deeds refer to the trust deed. The Trust (Amendment) Deed dated 05.06.2007 specifies that appointment of defendant no.3 was being done by defendant no.2 in exercise of CS No.8387/16 Page 3 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
powers laid down in clause 15 read with clause 8 (vii) and 8 (xii) of the trust deed. Ex.P-4 is another document admitted by parties. It is a letter, dated 24.03.2008, sent on behalf of defendant no.1 trust to the advocate of the plaintiff informing him about the opening of donation boxes of the trust.
Case of the Plaintiffs
5. Plaintiffs have been associated with charitable activities of the Trust. They have full regards for the settlor and defendant no.2. The defendant no.2 is 75 years old and has falling health. He has no authority to appoint any co-trustee under the trust deed, which power exclusively vested with the settlor. The appointment of defendant no.3 as co-trustee by the defendant no.2 is ex-facie in contravention of the terms and conditions of trust deed laid down in clause 7 & 8. Defendant no.2 himself being more than 75 years old, could not have continued in the office as trustee in view of clause no.8 (v) of the trust deed fixing the maximum age limit for a trustee as 75 years. Defendant no.2 acted under ill advise and would probably not have appointed defendant no.3 if he was properly advised about the trust deed. There was a vaccum in the management of affairs of the trust on demise of the settlor who did not hint or leave a succession plan for the trust.
6. A sangat of the followers of trust gathered on 10.06.2007 at the CS No.8387/16 Page 4 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
bhog ceremony of settlor, and considered ways and means to perpetuate the legacy of the trust. It was unanimously resolved by the sangat to constitute an advisory body to decide the manner in which legacy could be carried forward. 75 devotees were nominated as members of the said advisory body, and it was decided to have a meeting of the advisory body on 16.06.2007 at 8.00 PM. The resolution was passed in the presence of DM, Sangrur and SDM, Malerkotla. Sangat approved the resolution by show of hands in the presence of SDM, Malerkotla who subsequently endorsed it.
7. The meeting of advisory body took place on 16.06.2007 in the trust premises at New Delhi and it was decided to form a management committee of five eminent devotees who shall conduct day-to-day affairs of the trust. A committee of three retired judges was also constituted to analyze the trust deed and to advise regarding constitution of trust. Advisory body wrote a letter to the Syndicate Bank, 6 Bhagwan Das Road for freezing the accounts of defendant no.1. Further meetings of the committee were held on 07.07.2007 and 29.07.2007. The committee discussed about the vaccum in the management of trust on 29.07.2007 and resolved to approach the Court for legal redressal. This led to the filing of present suit wherein plaintiffs are seeking directions of the Court for administration of trust CS No.8387/16 Page 5 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
and have also proposed a draft scheme for managing the affairs of the trust.
8. The following prayers are made in the present suit:
(a) "holding and declaring that appointment of the Defendant No.3 by the Defendant No.2 as the Additional Trustee of the Defendant no. 1 / "Guruji Ka Ashram Trust" is bad and non-
est being in contravention to the terms and conditions of Trust Deed dated 14th May 1999 and First Amended Trust Deed dated 11th January 2007;
(b) remove Defendants No. 3 as an Additional Trustee of the Defendant No.1 / "Guruji Ka Ashram Trust", and appoint Board of Trustees / Management Committee which has been elected and recommended by the Advisory Committee during its meeting on 29th July 2007;
(c) declare that the Defendant No. 2 and 3 by their omissions and commissions have defeated the very purpose of the Defendant No. 1 Trust;
(d) pass a decree restraining the Defendants no. 2 and 3 and / or their nominees / agents / attorneys etc. from taking any decision in respect to the expenditure of the trust funds of the Defendant no.1/trust;
(e) approve Draft Scheme prepared for running the affairs of the Trust hereinafter;
(f) to direct Advisory Committee of the Defendant No.1 to continue to oversee and administer the legal and financial administration of the Defendant No.1 / trust till such time this Hon'ble Court approves the Scheme of Trust / Management Committee of the Defendant No.1 / in spirit of the Original Trust Deed and Draft Scheme placed before the Court for CS No.8387/16 Page 6 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
better and effective legal and financial administration of the Defendant no.1 Trust for all times to come;
(g) Cost of the suit, and
(h) To pass any other or further relief / direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
Case of the Defendants
9. It is case of the defendants that plaintiffs have no locus or cause of action to institute the present suit that has been filed with intention to harass and blackmail the defendants. The plaintiffs are followers of settlor. The settlor was having divine powers, and used those powers for mankind. The settlor was followed by large masses. Settlor put his own land worth Rs.10 lakhs (now worth Rs.5 Crores) as the trust property and got a Mandir constructed over it. The trust had only handful (about 10-12) of donors and remaining donations were received anonymous in the donation boxes kept at the Mandir. Settlor was capable, and in fact was managing, the trust himself. He appointed his old aged mother as trustee and on her demise, his father as additional trustee that reflects he wanted management and control of the trust with his family members. Defendant no.2 appointed defendant no.3 as additional trustee on demise of the settlor keeping in mind the manifest desire of the settlor. Defendant no.2 and 3 then amended the trust deed and have appointed 9 more respectable CS No.8387/16 Page 7 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
persons as trustees.
10. Some of the admirers of settlor, who otherwise were never associated with the trust, started demanding that they be included in the board of trustees. When their request was not acceded to, they threatened to freeze the bank accounts and prosecute the trust, despite an offer to include some of their representatives in the advisory committee of the trust. Hence, these people framed an alleged advisory body and included names of 75 people who are now being projected as having been elected by the Sangat on 10.06.2007. These people even wrote letters to the Syndicate Bank and Union Bank of India, for freezing the accounts of the trust, attempted to lock premises of the Mandir and its donation box, and openly started challenging and defying the authority of the trust. They trespassed in the Mandir premises on 26.08.2007 and carried out unauthorized construction by force regarding which a police complaint was lodged.
11. Defendants denied that defendant no.2 is 75 years of age and is not in good health. It is stated that defendant no.2 is 71 years old and is in good health & sound disposing mind. It is denied that defendant no.2 had no power to appoint co-trustee under the trust deed. It is further denied that any advisory body was elected during the bhog ceremony of settlor on 10.06.2007.
CS No.8387/16 Page 8 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
Issues
12. On the basis of pleadings, following issues were framed vide order dated 22.05.2008:
i) Whether the appointment of Defendant no.3 by Defendant No.2 as additional trustee was bad in law and in contravention of terms and conditions of the Trust dated 14th may, 1999 as amended on 11th January, 2007? OPP
ii) Whether the plaintiffs are entitled for a mandatory injunction for removal of Defendant no.3, as claimed? OPP
iii) Whether the Defendants no. 2 and 3 or their nominees/agents are not entitled to take any decision in respect of the expenditure of Trust's funds? OPP
iv) Whether the scheme of Trust filed by the Plaintiffs for running the affairs of the Trust is liable to be approved by the Court? OPP
v) Whether the Advisory Committee or the Managing Committee appointed, as claimed by the Plaintiffs, is entitled to oversee and administer the day-to-day administration and financial administration of Defendant No. 1 Trust? OPP
vi) Whether the existing Board of Trustees is not legally competent enough to manage the Trust? OPP
vii) Whether the affairs of the Trust were not being managed in accordance with Trust Deed and objects of the Trust? OPP
viii) Relief.
Plaintiffs' Evidence
13. Plaintiff no.2 Sh. Gopal Sethi appeared in the witness box and was examined as PW1. He deposed by way of evidence affidavit Ex.
CS No.8387/16 Page 9 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
PW1/A and relied upon the resolution passed by the Sangat authorizing him and other plaintiffs to approach the Court (Ex.PW1/A), resolution dated 10.06.2007 regarding constitution of advisory body (Ex.PW1/2), resolution dated 16.06.2007 regarding constitution of Interim Management Committee for managing the affairs of the trust (Ex.PW1/3) & notice issued by the Chief Administrative Officer of the Trust (Ex.PW1/4). Defendants subjected him to a lengthy cross-examination, spread over several hearings, before Ld. Local Commissioner.
Defendant's Evidence
14. Defendants examined total 9 witnesses by way of affidavits to prove their case.
15. Defendant no.2 was examined as DW1 by way of evidence affidavit Ex.DW1/A. He too was subjected to a lengthy cross- examination. His matriculation certificate (Ex.DW1/P1), mark-sheet for class 12th (Ex.DW1/P2), list of trustees of defendant no.1 trust as on 08.02.2012 (Ex.DW1/PC), compilation of amendments to the trust deed (Ex.DW1/PA) and a book containing Aims, Objects, Byelaws of Board of Trustees (Ex.DW1/PB) were put on record during his cross- examination.
CS No.8387/16 Page 10 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
16. DW2 Sh. Atul Kumar Singh deposed by way of evidence affidavit Ex.DW2/A wherein he stated that the settlor had expressed his wish to appoint Defendant no.3 as one of the trustees, before him. He also deposed that he obtained legal advise on the trust deed during appointment of defendant no.2 and defendant no.3 as trustees. He further deposed that he was present at the Bhog Ceremony of settlor and no advisory body was elected/nominated during that ceremony. Cross-examination of this witness was not completed as per record.
17. DW3 Sh. G. S. Narang deposed by way of evidence affidavit ExDW3/A. He deposed that he used to visit the settlor regularly and defendant no.3 used to be with the settlor, taking care of his personal needs, whenever he visited. He was present in the bog ceremony of settlor and no advisory body was nominated or elected during the said ceremony. He denied in his cross-examination that defendant no.3 was kept outside the trust activities because he was involved in drugs. He denied that defendant no.3 was running the trust in an arbitrary manner or that the advisory body was elected during the bhog ceremony of the settlor.
18. DW-4 Sh. D.K. Singh deposed by way of evidence affidavit Ex.
CS No.8387/16 Page 11 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
DW4/A that he was one of the sewadar at the sangat and always found defendant no.3 besides the settlor taking care of his personal needs. He also deposed that affairs of the trust were being held well. In his cross-examination he expressed unawareness about the trust deed and deposed that he was only a sewadar.
19. DW-5 Sh. Rajeev Malhotra deposed by way of evidence affidavit Ex.DW5/A stating that he was a sewadar. He deposed that he was not aware about the trust deed much and was asked by the management to depose in the Court.
20. DW-6 Shimu Kapur deposed by way of evidence affidavit Ex.DW6/A, stating that he found defendant no.3 to be in close proximity of the settlor during his lifetime. He was one of the sewadar and knew about the case because people had been talking about it. He proposed to depose in the court on his own and was not aware of the trust deed etc.
21. DW-7 Smt Maneka Gandhi also deposed that defendant no.3 was close to the settlor during his lifetime. She deposed that she was shown as one of the elected/nominated member of the advisory body but no election/nomination happened in her presence though she CS No.8387/16 Page 12 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
attended the Bhog Ceremony. Her consent was not sought before nominating her. In her cross-examination also she deposed that no resolution was passed in the bhog ceremony and she was present in the ceremony all through out.
22. DW8 Sh. Kripal Singh deposed by way of evidence affidavit Ex.DW8/A. He identified himself as Sarpanch of village Dugri and states that his name is included in the elected/nominated advisory body though he was never consulted and his consent for such nomination was never obtained. He deposed that Sangat had collected at Dugri in the Bhog Ceremony of the settlor but no one was in the right frame of mind to elect or nominate a committee. He maintained during his cross-examination that no committee was constituted or elected at the Bhog ceremony of the settlor. He also stated that he signed his affidavit at Malerkotla but it was drafted and sent to him from Delhi.
23. DW9 Sh. R.P.S. Pawar deposed that defendant no.3 always used to be by the side of settlor and no election of the advisory committee was held at the Bhog Ceremony of Settlor on 10.06.2007. He denied that defendants prepared his affidavit. He stated that he prepared his affidavit himself.
CS No.8387/16 Page 13 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
Final Arguments
24. Final arguments were advanced on behalf of either party.
Written arguments have also been filed, which are perused. The arguments advanced on each point shall be referred in forthcoming paragraphs, during discussions on reasons for decision.
Appreciation of Evidence
25. This suit was instituted on the premise that there was no provision in the trust deed regarding appointment of a trustee after the death of settlor. The sole surviving trustee i.e. defendant no.2 had no power to appoint another trustee, and he himself was 75 years old hence ineligible to continue as a trustee. Defendant no.2 acted under wrong legal advise and appointed defendant no.3 as co-trustee despite having no powers to do the same. Since there was a vaccum in the management of trust after demise of settlor, directions of the Court were required for proper administration of the trust. Plaintiffs claimed that they were members of the advisory body, elected during the Bhog Ceremony of the settlor for advising about perpetuating the legacy of the settlor.
26. The trust deed is an admitted document. It is Ex.P-1.
Interpretation of the trust deed is a legal issue. Extrinsic aid in interpreting this document shall be relevant only in case any CS No.8387/16 Page 14 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
ambiguity is to be resolved.
27. The issues of fact were age of defendant no.2, and election/nomination of advisory body, because defendants denied these facts. No specific evidence on age of defendant no.2 was however led by either party. The Trust (Amendment) Deed Ex.P-2 was executed on 11.01.2007. Defendant no.2 was appointed as additional trustee vide the said deed by the settlor himself. This suggests that defendant no.2 was below 75 years of age on 11.01.2007. The settlor left for heavenly abode in the same year, just after about four months, on 31.05.2007. On balance of probability thus, it can be safely assumed that defendant no.2 was not 75 years old on the date of demise of the settlor. Questions were put to the witnesses regarding improper running of the trust by defendant no.3. Questions were also put regarding the behavior (like consuming drugs etc.) and qualifications of defendant no.3. Such facts were however never pleaded in the plaint. The pleadings were neither amended during pendency of the suit to include such facts. In such a case, evidence led on these aspects is beyond pleadings and cannot be considered.
28. The answers given by PW-1, in his cross-examination, CS No.8387/16 Page 15 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
regarding advisory body, raise doubts on the existence of such a body. PW-1 could not inform who prepared the list of members of the advisory body allegedly elected at the bhog ceremony of the settlor, and when & where that list was prepared. He stated that no election of members was done for the advisory committee and only the names were announced in the Sangat. Consent of the persons whose names were announced, was obtained later on, like his consent was obtained at Delhi after the Bhog Ceremony. This is contrary to the claims of witnesses of the defendants, especially DW-7 and DW-8, who also deposed that they were present in the bhog ceremony of settlor and no elections/nominations of any advisory body were held there. Certain other witnesses of defendant, like DW-9, also deposed to this effect but testimonies of DW-7 and DW-8 assume more significance because names of these two persons are also reflected in the list of advisory body allegedly nominated during the bhog ceremony. These two persons specifically deposed that their consent for inclusion of their names in the alleged advisory body was never obtained. They stood the test of cross-examination and plaintiff could not prove that their consent was obtained. DW-8 deposed in his cross-examination that his affidavit was typed at Delhi and sent to him at Malerkotla for signatures. While this may suggest that the witness was tutored, it was for the plaintiffs to bring forth this fact. No suggestion was put to the CS No.8387/16 Page 16 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
witness in this regard during his cross-examination however. Witness specifically denied that any advisory body was constituted during the Bhog ceremony of settlor. There is no whisper in his cross- examination regarding obtaining of his consent for inclusion of his name in the advisory body.
29. PW1 relied upon resolutions of advisory body in his examination in chief but admitted during cross-examination that the resolution Ex.PW1/3 did not bear his signatures. He could not answer about the Minutes book of the advisory body and admitted that there was no register/record of resolutions passed by the advisory body. He admitted that he was not aware about the alleged Interim Management Committee and that he had no idea what advise the advisory body was giving for running the trust. He also expressed unawareness about the activities of advisory body. He further expressed unawareness about the time when the alleged resolution for constitution of advisory body was circulated during the bhog ceremony. He denied having knowledge about the Memorandum of Association, Constitution, bye- laws and official addresses of the Interim Management Committee and Advisory body. He further denied having knowledge if meetings of general sangat were ever called for ratifying the actions of the advisory body. This again raises a doubt on the existence of advisory body itself.
CS No.8387/16 Page 17 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
30. PW1 was questioned about his interest in the trust to which he replied that he was a follower of settlor and he only wanted that the trust be run in a transparent manner as per will and desires of the settlor. He was questioned about the trust to which he stated that he gained knowledge about the objects of the trust, its donations and properties only when the present case was filed. When questioned about the will of settlor in inclusion of his family members for running the trust, he deposed that defendant no.3 was staying with the settlor for 1-2 years before the demise of settlor and not for 3-4 years as suggested by the defendants. He admitted having attended last rites of the settlor but cited lapse of memory when suggested that defendant no.3 had performed last rites of the settlor as per his wishes. This portion of the testimony of PW-1 may be relevant for interpreting the trust deed or for deciding locus of the plaintiffs, which shall be discussed in forthcoming paragraphs of this judgment.
31. DW1 too was subjected to lengthy cross-examination. He expressed unawareness about the alleged advisory body constituted by the sangat during the bhog ceremony of settlor. Most of the cross- examination of DW-1 revolved around questions relating to financial irregularities allegedly being committed by him in running the trust.
CS No.8387/16 Page 18 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
These allegations are not part of the pleadings however. If assumed that these facts occurred after filing of the suit, the pleadings should have been amended at an appropriate stage to bring the said facts on record. This however was not done. Hence, the cross-examination of DW1, pertaining to financial irregularities, cannot be considered for deciding the suit. [Referred Bondar Singh vs. Nihal Singh (2003) 4 SCC 161 relied upon by Ld. Senior Advocate on behalf of the defendants].
The Trust Deed
32. The prime averments, basis which this suit has been filed, are that the defendant no.2 acted in contravention of clause 7 & 8 of the trust deed while appointing defendant no.3 as co-trustee. It shall thus be relevant to refer to these two clauses, as well as other clauses of trust deed that could be of help in interpreting clause 7 & 8. The said clauses are being reproduced verbatim herein-below:
Clause 7 "7. The trustees hereby appointed as mentioned in Clause 4 above shall be known as the First Trustees. During the life time of founder Trustee and First Trustee:
i) The SETTLER/FIRST Trustee shall be Chairman and Managing Trustee and shall hold such office till death or resignation.
ii) The minimum strength of the Board of Trustees shall be two and may be increased to any number, subject to a maximum of eleven at the sole discretion of the SETTLER.CS No.8387/16 Page 19 of 40
Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
iii) The appointment of additional Trustees and the increase (subject to a maximum of eleven) or reduction (subject to a minimum of two) shall be made by and at the sole discretion of the SETTLER.
iv) During the life time of the SETTLER, and not withstanding the number of Trustees on the Board, the general management and exercise of powers referred to in Clause 9 to 15 below, shall vest solely with the SETTLER, or such other Trustee or Trustees, whom the SETTLER may authorise to perform specific duties on such terms as he thinks fit."
Clause 8 "8. Subject to the provisions of Clause 7(i) to (iii) above, the constitution of the Board of Trustees shall be as under:-
i) The total strength of the Trustees at any given time shall not exceed eleven and shall not be less than seven.
Provided that subject to eligibility in terms of this Deed and particularly Clause 8(iv) and (vi).
ii) The Trustees shall collectively be called the Board of Trustees.
iii) The power of appointing now or additional Trustees shall vest with the Board of Trustees.
iv) No person shall be eligible for trusteeship unless he or she is more than twenty-one years of age.
v) A Trustee shall remain in office for a period not exceeding eleven years. This report of eleven years shall commence from the date of his appointment;
Provided, however, that a trustee, male or female, shall retire before the completion of his or her full tenure of eleven years, if before such tenure, he or she reaches the age of seventy five.
vi) The Trustees shall be majority, elect any one out of themselves to be the Managing Trustees.
vii) In case any vacancy arises on account of the death or resignation of a trustee, or on account of a trustee becoming unfit or CS No.8387/16 Page 20 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
incapable to act as such, or additional Trustee shall be appointed by the Trustees with the consent of majority of the Trustees.
viii) All acts in carrying out these presents if done and carried out with the consent of majority of the trustees for the time being, shall be as valid and effectual as if such acts and been done by all the Trustees.
ix) Notwithstanding anything contained otherwise, the quorum for a meeting of the Board of Trustees shall be two Trustees present in person and all questions at such meetings will be decided by majority of the Trustees present in the meeting.
x) A trustee may resign office as Trustee by giving notice in writing to the Board of Trustees.
xi) A resolution circulated to all the trustees for the time being in India and signed by the two-third majority of such trustees shall be as valid and effectual duly passed at a meeting of the Board of Trustees.
xii) The surviving or continuing Trustees shall constitute the board of Trustees notwithstanding any vacancy.
Clause 10 "10. The general management and control of the Trust properties and its affairs shall be vested in the Trustees, and the Trustees shall have the power to do all such acts as may be considered necessary to secure the objects, and for the benefits of the Trust and/or management of its properties and affairs."
Clause 15 "15. The Trustees may from time to time make, alter, amend, and rescind rules and regulations with regard to the conduct of the business and all matters in respect of which any power or duty is hereby vested in them."
CS No.8387/16 Page 21 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
Clause 16 "The trust hereby created is irrevocable."
Legal Principles I. Maintainability of the Suit
33. The instant suit has been filed under Section 92 of the Code of Civil Procedure. The said section reads as below:-
"92. Public Charities. - (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree -
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(e) declaring what proportion of the trust property or CS No.8387/16 Page 22 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2)................"
34. It is clear on reading of this section that a suit under section 92 CPC shall be maintainable, when filed by two or more persons having an interest in the trust, with the leave of the Court. The suit can be filed in case of alleged breach of trust or where directions of the Court are required for administration of trust.
35. There are no allegations of breach of trust in this case. Case of the plaintiffs is that directions of the court are required for administration of the trust since a vaccum has arisen after the demise of settlor due to absence of requisite number of trustees as provided in the trust deed. It is argued that defendant no.2, the sole surviving trustee, has acted in contravention of the trust deed and illegally appointed defendant no.3 as a trustee. The defendant no.3 is a Trustee-de-son-tort and the instant suit for his removal is maintainable. It is further argued that the plaintiffs have interest in the CS No.8387/16 Page 23 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
trust since they are followers of the settlor. This fact has been admitted by the defendants themselves because they did not deny that plaintiffs are followers of the settlor and used to participate in sangat activities like sewa of offering 'Chai Prasad' and 'Langar'. Person like devotees, followers, old students, those who have given their time and energy, can be said to be the persons having interest in the trust. Following judgments were referred by the plaintiffs in support of aforesaid contentions:
(i) Shanti Devi VS. State and Others ILR 1982 (2) Delhi 57
(ii) Ramdas Bhagat vs. Krishna Prasad Tewari and Others aIR 1940 Pat 425.
(iii) Shishir Bajaj and Others vs. India Youth Centres Trust and Ors.
MANU/DE/1770/2010
(iv) Radha Krishna and Others vs. Lachmi Narain and Others AIR 1948 Oudh 203
(v) Syed Abdul Alam vs. S.M. Abhir Jaan Baby (XXXII) Calcutta Weekly Notes 838
(vi) T.R. Ramachandra Iyer VS. Parameswaran Munpu 1919 IX Law Weekly 402.
(vii) Ramdas Bhagar vs. Krishna Prasad Tewari and Others 1940 SCC Online Patna 239
(viii) Suraj Bhan vs. Bodha Nand 1986 SCC Online P&H 224
(ix) C. Kalahasti and Ors. Vs. R. Sukhantharaj and Ors. 1975 ILR 2 Mad 337
(x) Farman Ali Khan vs. Mohd. Raza Khan and Others AIR 1950 Allahabad 62
(xi) Mangi Lal vs. Durga Devi AIR 1968 Rajasthan 314
(xii) Hari Bhagwan Sharma and Others vs. Badri Bhagat CS No.8387/16 Page 24 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
Jhandewalan Temple Society and Others 1984 SCC Online Del 43
(xiii) Gour Mohan Das Baishanav & Anr. Vs. Sajedur Raja Ghowdhuri 1897 ILR Calcutta 418
(xiv) Farman Ali Khan vs. Mohd. Raza Khan and Anr. AIR 1950 Allahabad 62
(xv) GV Selvam vs. GV Sampat 2015 SCC online Madras 8637
36. The contentions on behalf of defendants are that interest in a trust must be real, substantive and existing interest in the objects of the trust. This is not only to be proved on demurrer at the stage of grant of leave to sue but also has to be proved during trial by leading cogent and reliable evidence. Plaintiffs could not prove real, substantive and existing interest in the trust because the existence of advisory body could not be proved, and the plaintiffs did not appear in the witness box to prove their respective interests in the trust. Following case laws were relied upon by the defendants in support of their contentions:
(i) G.V. Salem vs. G.V. Sampath (2015) SCC Online Mad 8637
(ii) Mahant Harnam Singh vs. Gurdial Singh AIR 1967 SC 1415
(iii) T.J. John vs. Church of South India 2015 SCC OnLine Ker 18977
(iv) V. Rajasekaran vs. M. Rajendram Trustee, M.G.R. Memorial Trust 2007 (2) CTC 769
(v) Swami Paramatmanand Saraswati vs. Ramji Tripathi (1974) 2 SCC 695
(vi) Davular Pitchayya vs. Divi Venkatakrishnamacharlu (1929) 30 CS No.8387/16 Page 25 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
LW 954
(vii) Swami Paramatmanand Saraswati vs. Ramji Tripathi (1974) 2 SCC 695
37. I have perused the judgments cited by either party. There is no quarrel on the legal position that the plaintiffs must show an interest in the trust and such interest should be real, substantive and existing interest, though may not be direct interest. This interest has to be shown on demurrer at the stage of grant of leave to sue, and by leading cogent and reliable evidence at the stage of trial. The question is if plaintiffs have been able to show this kind of interest as is contemplated under Section 92 of the CPC.
38. A reading of Section 92 makes it clear that interest of two or more persons filing the suit must be shown in the trust. The minimum requirement under section 92 therefore is that interest of two persons at least must be shown. The instant suit has been filed by four persons but only one of them appeared in the witness box. One of the plaintiff infact withdrew his name during the pendency of the suit. No attempts were made by the plaintiffs to prove that at least two persons had interest in the trust. The existence of advisory body, on behalf of which this suit was allegedly filed, could not be proved too for reasons already discussed under the head 'Appreciation of Evidence'.
CS No.8387/16 Page 26 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
39. The plaintiff no.3, who was examined as PW3, when questioned about his interest in the trust, stated that he had no knowledge about the objects etc. of the trust before filing of the present suit, and his only interest was that the trust should be run properly. He reflected his involvement in the trust only as a follower of the settlor. The fact that he had no knowledge about the objects of the trust before institution of present suit itself suggests that he had no interest in the trust. He used to visit the settlor because he believed the settlor was having divine and healing powers, as he deposed in his cross-examination, and not because he wanted to contribute in propogating the charitable purpose of the trust. His interest therefore cannot be said to be real and substantive. PW-1 deposed that he had donated Rs.50,000/- to the trust in the year 2000 by cheque but did not produce any documentary proof of the same despite having been questioned. He donated this amount, per his deposition, in the year 2000, and there is no averment of having made any donations thereafter. The instant suit was filed in the year 2007. PW-1 could not show how he had a subsisting/existing interest in the trust at the time of filing of the suit when he never remained connected to the objects of the trust after allegedly donating Rs.50,000/- in the year 2000.
40. The plaintiffs thus have not been able to prove that they have CS No.8387/16 Page 27 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
interest in the trust i.e. defendant no.1. Plaintiffs are followers of settlor, which is one of the admitted facts. It is the case of the parties that the settlor had divine healing powers due to which he had a large number of followers. People used to attend sangat in order to seek blessings of the settlor. Plaintiff no.3 also became a follower of the settlor for said reasons as he himself admitted, and was never involved in furthering the objects of the trust in any manner. He would meet the settlor for seeking redressal of his personal problems and not for furthering the objects of the trust that was being run by the settlor. Interest in settlor cannot be akin to interest in the trust. Plaintiffs have not been able to prove interest in the trust and thus have no locus to maintain the present suit, due to non-fulfillment of the requirements of section 92 CPC.
II. Interpretation of the Trust Deed
41. The main contention on which this suit is based is that the appointment of defendant no.3 was in contravention of clause 7 & 8 of the trust deed. It was argued on behalf of the plaintiffs that clause 7 was operative during the lifetime of settlor while clause 8 was applicable after his demise. Clause 8 provides that minimum number of trustees shall be 7 and two trustees shall form the quorum. This being so, the sole surviving trustee i.e. defendant no.2 was not CS No.8387/16 Page 28 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
empowered to appoint defendant no.3 because of lack of quorum. Clause 8 (ix) that provides for quorum is a non-obstante clause and therefore other clauses including clause 8 (xii) of the trust deed, which provides that surviving and continuing trustees shall constitute the Board of Trustees notwithstanding any vacancy, were subject to this clause. Quorum signifies minimum requirement and no business could have been transacted in the absence of quorum. A holistic reading of the trust deed shows that singular or plural words were used in the trust deed wherever the context so required. While referring to board of trustees, the trust deed used plural i.e. trustees and not trustee which suggests that it was never intended that a single trustee shall constitute board of trustees. This interpretation is further strengthened from use of the word 'collectively' in clause 8 (ii) that states that the trustees shall collectively be referred as board of trustees thereby implying that a single trustee could not constitute board of trustees. It was argued that section 13 of the General Clauses Act, that singular includes plural, cannot be applied blindly without reference to context. The trust deed has specifically stated 'trustee' where it was referring to a single trustee like in clause 11 (j). Literal interpretation of the trust deed, as suggested by the plaintiffs, does not render any clauses otiose and rather furthers the objects of the trust. Section 73 of the Trust Act is not applicable to public charitable CS No.8387/16 Page 29 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
trusts, a trust deed cannot be interpreted on the basis of principles laid down for interpretation of the Companies Act, and trustee cannot invoke doctrine of necessity to usurp control of the trust. It is argued that the public trusts are not someone's property and courts can always appoint trustee in cases where settlor failed to appoint one. Following judgments were relied upon by the plaintiffs in support of their contentions:
(i) Ranjit Sinh V Patil vs Collector Kolhapur 2004(3) Maharashtra Law Journal 642
(ii) Bhanushali Housing Cooperative Society vs. Mangilal and Others (2015) 10 SCC 277
(iii) Shishir Bajaj and Ors. Vs. India Youth Centres Trust and Ors MANU/DE/1770/2010
(iv) Shanti Devi vs. State and Ors. ILR 1982 (2) Delhi 57
(v) Trustees of HEH The Nizam's Pilgrimage Money Trust, Hyderabad vs. Commissioner of Income Tax, 2004(4) SCC 179
42. It was contended on behalf of the defendants that while interpreting the trust deed, intent of the settlor has to be seen. The settlor made the trust irrevocable in clause 16 of the trust deed. It thus could not have been be the intention of the settlor that the trust will stop its charitable activities soon after his death, because number in that case would fall below two. Settlor included clause 8 (xii) in the trust deed to obviate any such possibility, empowering the surviving or continuing trustee to act. This nowhere effects the clauses CS No.8387/16 Page 30 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
pertaining to decision by majority and quorum. The condition of quorum shall be required to be fulfilled only in cases where minimum number exists and decision by majority shall be applicable to such cases only. Clause 8 (xii) may be read in singular too, considering Section 13 of the General Clauses Act. This clause is a continuity clause that empowers the surviving and continuing trustee to act in cases of vacancy, and has been subject matter of interpretation in case related to companies. The term vacancy necessarily presupposes a situation where the number has fallen below minimum and shall not come in to play in cases where minimum number exists despite death, resignation or any other eventuality. The trust deed has to be interpreted literally and in a manner that advances the intent of the settlor. This is Odger's Rules of Interpretation cited with approval by Indian Courts. If two interpretations are possible, one that gives effect to all clauses and one which renders one or more of these nugatory, the former should be adopted. Even if it is held that the trust deed does not provide for appointment of trustee, the surviving trustee can act and appoint another trustee by necessary implication, under common law. This principle is embodied in section 73 of the Indian Trust Act. Though Indian Trust Act is applicable to private trust, however section 73 contains general principles of law of trusts that can be applied to the public trusts as well. The case laws relied upon CS No.8387/16 Page 31 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
by plaintiffs to say that section 73 does not apply to the public trusts, contain merely an obiter to this effect, made sub silentio. The Statement of objects and reasons to the Indian Trust Act, 1882 provides that with few exceptions, the Indian Trust Act, 1882 substantially contains such rules that were being administered by the English Courts of Equity. The exceptions are mentioned and section 73 is not mentioned therein. Following judgments were relied upon by the defendants in support of their contentions:
(i) Govinda Bala Patil vs. Ganpati Ramchandra Naikwade (2013) 15 SCC 193
(ii) Mithhoo Lal vs. Gopal Chand AIR 1979 All 226
(iii) Channel Collieries Trust Limited vs. Dover St. Margaret's and Martin Mill Light Railway Company [1914] 1 Ch. 568
(iv) Ananthalakshmi vs. Indian Trades Etc. AIR 1953 Mad 467
(v) P. Madhusudan Rao vs. Lt. Col. Ravi Manan 2015 SCC OnLine Hyd 87
(vi) Delhi Development Authority vs. Durga Chand Kaushish (1973) 2 SCC 825
(vii) Re Scottish Petroleum Company [23 Ch. D. 413]
(viii) Re Bank of Syria, Owen and Ashworth's Claim [1900 2 Ch.
272]
(ix) State of UP vs. Bansi Dhar (1974) 1 SCC 446
(x) Sheikh Abdul Kayum vs. Mulla Alibhai (1963) 3 SCR 623
43. The legal position that emerges from the case laws is that continuity clause is not a foreign concept. Such clauses are being put CS No.8387/16 Page 32 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
in the documents to avoid vaccum, for long now. Such clauses have been accepted and interpreted by the Hon'ble Higher Courts. The contention of plaintiff that principles of company law cannot be applied to interpret a trust deed, is devoid of merits. Rules regarding interpretation of a document are common and not separate for company law and law of trusts. What defendants have imported from company law is the interpretation of continuity clause which applies universally. There is no quarrel on the legal preposition that literal interpretation should be given to a document and in case two constructions are possible, one of which gives effect to all the clauses and shall render some of the clauses nugatory, former shall be accepted. The trust deed needs to be interpreted in light of these legal principles. The main dispute in this case is interpretation of clause 7 & 8 of the trust deed.
44. Clause 7 of the trust deed provides for board of trustees during the life time of the settlor. It states that the minimum number of trustee during the life time of settlor shall be two and maximum shall be 11 and the appointment of trustees shall be at the sole discretion of the settlor. Clause 8 of the trust deed opens with the words "subject to clause 7 (i) to 7 (iii)". This clause provides for constitution of the board of trustees. Since clause 8 is subject to clause 7 (i) to (iii), it is clear that it shall be applicable when clause 7 (i) to 7(iii) are not CS No.8387/16 Page 33 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
applicable. Clause 7 was applicable during the lifetime of the settlor. Hence, clause 8 would be applicable after demise of the settlor. It is thus clear that settlor did leave a succession plan for the trust, and it is provided in clause 8 of the trust deed.
45. Defendant no.3 was appointed after the demise of settlor and hence it is to be tested if his appointment is as per clause 8 of the trust deed or not. Clause 8 (iii) of the trust deed empowers the Board of Trustees to appoint new or additional trustees. Total strength of the trustees is to be minimum 7 and maximum 11 as per clause 8 (i). Trustees are to take decisions in a meeting, by majority, and prescribed quorum for the meeting is 2 trustees as per clause 8 (ix), notwithstanding anything contained otherwise. Clause 8 (xii) provides that surviving/continuing trustees shall constitute board of trustees notwithstanding any vacancy.
46. The contention of plaintiffs is that the requirement of quorum is sacrosanct and is not subject to clause 8 (xii), because clause 8 (ix) contains non-obstante clause. Contention of defendants is that continuity clause operates despite the fact that requirement of quorum is unfulfilled. The interpretation suggested by defendants to the continuity clause has been extended by Hon'ble Higher Courts, while CS No.8387/16 Page 34 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
interpreting the articles/memorandum of association of companies (referred AIR 1953 Mad 467). Hence, clause 8(xii) of the trust deed shall be applicable despite non-fulfillment of clause 8(ix). The plural word trustees in such a case can be read as trustee also in case the circumstances so require and context of clause 8 does not bar such a reading of singular into plural and vice versa. If interpretation of the plaintiffs is accepted, it shall mean that everytime there is a sole surviving trustee for any reasons, court shall have to step in to appoint another trustee and in the meanwhile sole surviving trustee shall not be able to transact any business of the trust. Such an interpretation to the trust deed is absurd because it would effect the functioning of the trust.
47. Plaintiffs contended that principles applied for interpreting the articles of company cannot be applied for interpreting a trust deed. This argument is without any merits because no special principles are applicable for interpretation of trusts and rules of interpretation to be applied for construction of a document are universal. The continuity clause in fact finds mention in section 73 of the Indian Trust Act, 1882 as well, which was referred before this court during arguments. There is thus no force in the arguments that continuity clause in a trust deed has to be interpreted differently. The concept of continuity clause is embodied in section 73 of the Indian Trust Act and thus CS No.8387/16 Page 35 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
cannot be said to be completely alien to the law of trusts. The trust deed contains continuity clause thereby empowering even a sole surviving trustee to act as board of trustee notwithstanding any vacancy.
48. The amendment deed Ex.P-3 clearly depicts that defendant no.2 appointed defendant no.3 as trustee on demise of settlor, while acting under clause 8 (xii) of the trust deed, and hence acted within his powers. The settlor did not specify any other qualification for a trustee except that of age i.e. 21 years and maximum 75 years. There is nothing in the trust deed, which suggests that only family member could be appointed a trustee or only non-family could be the trustee. Hence, only because defendant no.3 is a family member of the settlor, does not qualify or disqualify him to be a trustee any more or less than a non-family member. There is no material on record to suggest that settlor wanted the trust to be a family trust. The appointment of defendant no.3 was as per clause 8 of the trust deed by the sole surviving trustee i.e. defendant no.2, and does not become bad only because he was a family member of the settlor and the settlor never wanted the trust to be a family trust.
CS No.8387/16 Page 36 of 40Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
Issue-wise findings
49. In view of discussion above, issue wise findings are as below:-
Issue no. i): Whether the appointment of Defendant no.3 by Defendant No.2 as additional trustee was bad in law and in contravention of terms and conditions of the Trust dated 14th may, 1999 as amended on 11th January, 2007? OPP Issue no. ii): Whether the plaintiffs are entitled for a mandatory injunction for removal of Defendant no.3, as claimed? OPP Issue no. iii) Whether the Defendants no. 2 and 3 or their nominees/agents are not entitled to take any decision in respect of the expenditure of Trust's funds? OPP And Issue no. (vi) Whether the existing Board of Trustees is not legally competent enough to manage the Trust? OPP
50. These four issues are being taken up together because these are interconnected. Defendant no. 2 was empowered to appoint a Trustee in terms of Clause 8(xii) of the trust deed. Clause 8 specifies eligibility for the trustees in clause 8(iv) according to which minimum age for appointment as trustee is 21 years and maximum age is 75 years. No other specific qualification are mentioned in the trust deed CS No.8387/16 Page 37 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
for eligibility of the trustee. The underlying principle of law of trusts is to give effect to the intentions of settlor. The settlor himself did not choose to specify any other eligibility criteria for appointment of a trustee, except age. These is no mention in the trust deed that only family member or non-family member shall be trustee. Appointment of defendant no.3 is as per the trust deed and not in contravention of its terms and conditions. The appointment being valid, defendant no. 2 and defendant no.3 were legally competent to manage the affairs of the trust and take decision in respect of the expenditure of the trust's funds, on the date of institution of this suit and are not liable to be removed.
51. Accordingly, issue no. (i), (ii), (iii) & (vi) are decided against the plaintiffs and in favour of defendants.
Issue no. iv): Whether the scheme of Trust filed by the Plaintiffs for running the affairs of the Trust is liable to be approved by the Court? OPP
52. Onus to prove issue no. (iv) was upon the plaintiffs. The plaintiffs have not been able to prove their locus for reasons discussed under the head 'Maintainability of the Suit'. There are no allegations of maladministration of trust in the pleadings. Appointment of defendant no. 3 by defendant no.2, which is prime challenge, is as per CS No.8387/16 Page 38 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
the trust deed. Hence, defendant no. 3 is not a Trustee-sons-de-tort and no directions are required for his removal or for administration of trust. The scheme proposed by plaintiffs therefore can't be approved as this shall amount to an interference into the wishes of the settlor who specified in the trust deed how the trust shall function. Issue no.
(iv) is accordingly decided against the plaintiffs and in favour of the defendants.
Issue no. (v): Whether the Advisory Committee or the Managing Committee appointed, as claimed by the Plaintiffs, is entitled to oversee and administer the day-to-day administration and financial administration of Defendant No. 1 Trust? OPP
53. Onus to prove issue no. (v) was upon the plaintiffs. Plaintiffs however could not prove the existence of Advisory Committee for reasons already discussed under the head 'Appreciation of Evidence'. Since existence of Advisory Committee could not be proved, no question of running the affairs of Defendant no. 1 trust by the Advisory Committee arises. Issue no. (v) is accordingly decided against the plaintiffs and in favour of defendants.
Issue no. (vii):Whether the affairs of the Trust were not being managed in accordance with Trust Deed and objects of the Trust? OPP
54. Onus to prove this issue was upon the plaintiffs. The plaintiffs CS No.8387/16 Page 39 of 40 Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.
have not averred a single fact in their entire plaint which would reflect maladministration in running the affairs of the trust. An attempt was made to lead evidence to the effect that defendant no.3 was misusing the funds of the Trust. Such evidence however cannot be considered in the absence of pleadings. Issue no. (vii) is accordingly decided against the plaintiffs and in favour of defendants.
Issue no. (viii): Relief
55. In view of findings qua issue no. (i) to (vii), plaintiffs are not entitled to any relief. The suit is accordingly dismissed.
56. Defendants prayed for imposing cost on dismissal of suit.
Considering that the suit was merely based on interpretation of trust deed, and the interpretation suggested by plaintiffs could be one of the possible view, I do not find this to be an appropriate case for imposition of cost on dismissal. Hence, no order as to cost.
57. Decree sheet be prepared accordingly.
58. File be consigned to Record Room.
Announced in the open (JYOTI KLER)
Court on 31.08.2018 ADJ-05 (SOUTH DISTRICT)
(Judgment contains 40 pages) SAKET COURTS, NEW DELHI
CS No.8387/16 Page 40 of 40