Allahabad High Court
Madhukar Shukla vs Gangeshwar Mahadeo Ji, Through ... on 25 August, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:56840 Court No. - 17 Case :- CIVIL REVISION No. - 60 of 2023 Revisionist :- Madhukar Shukla Opposite Party :- Gangeshwar Mahadeo Ji, Through Managing Trustee And President Ram Shanker Shukla, And Another Counsel for Revisionist :- Vivek Sirswal,Mithila Shanker Awathi Counsel for Opposite Party :- Avtar Singh,Anurag Dixit Hon'ble Alok Mathur,J.
1. Heard Sri Vivek Sirswal, learned counsel for the revisionist as well Sri Avtar Singh for respondent No.2.
2. The facts in brief leading to the present controversy are that a trust in the name of Gangeshwar Mahadev Trust was created by one Mansa Deen Shukla on 14.11.1904 in which the revisionist has claimed that he was appointed as a trustee. It has further been stated that one Rama Shankar Shukla was discharging the duties as Managing Trustee of the said trust. According to the revisionist the said managing trustee was discharging the duties negligently and there were several allegations against him for dissipating the funds of the said trust and accordingly the revisionist had filed an application under Sections 3 and 7 of the Charitable and Religious Trust Act, 1920 (hereinafter referred to as the Act of 1920) before the court of District Judge, Lucknow with following prayers:
(A) For rendition of the accounts from Sri Rama Shankar Shukla, the then managing trustee; (B) to remove Rama Shankar Shukla as a trustee of the said trust in as much as he has misused his position as a trustee and (C) For an order or direction appointing the applicant as managing trustee of the said trust.
3. Subsequently, the said case has been transferred to the court of Special Judge/P. C. Act, Lucknow and the then Additional District Judge, Lucknow and during pendency of the said application under Charitable and Religious Trust Act, 1920 Rama Shankar Shukla had died on 18.9.1992. The said proceedings remained pending and certain documents were filed by Ms. Neena Dixit in the said case. Subsequently, Ms. Neena Dixit moved an application for substitution stating that she was the managing trustee of the said trust and was entitled to contest the said case on behalf of the trust. Learned Additional District Judge, Lucknow has allowed the application for impleadment by means of order dated 18.3.2023 which has been impugned in the present revision.
4. Learned counsel for the revisionist, has submitted that as the said Rama Shankar Shukla has died during pendency of the said application right to sue does not survive and even otherwise no cause of action accrued to opposite party No.2 to maintain the application for substitution and consequently the impugned order suffers from the said infirmities and deserves to be set aide. Lastly, it was submitted that the application for substitution has been filed with great delay.
5. Learned counsel for the respondents, on the other hand, has opposed the said revision. It is submitted that Ms. Neena Dixit is the managing trustee of the said trust and accordingly she is necessary and property party in the said case where the prayer which is surviving in the said application is for appointment of managing trustee. Accordingly, the said case can be contested on behalf of the trustee only by the managing trustee which post is being held by her. Therefore, the application has been allowed by means of the impugned order dated 18.3.2023 and consequently there is no infirmity in the same.
6. I have heard learned counsel for the parties and perused the record.
7. From a perusal of the application preferred by the revisionist before the court of Additional District Judge, Lucknow filed under Section 3 and 7 of the Act of 1920. The first prayer made in the application pertains to rendition of accounts of the trust held by Sri Rama Shankar Shukla and secondly considering that he having been misusing his post of Managing trustee should be removed from the said post.
8. A perusal of Section 3 of the Act of 1920 provides for the following:-
"3. Power to apply to the Court in respect of trusts of a charitable or religious nature.? Save as hereinafter provided in this Act, any person having interest in any express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the court within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate to obtain an order embodying all or any of the following directions, namely:?
(1) directing the trustee to furnish the petitioner through the Court with particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject-matter of the trust, and of the income belonging thereto, or as to any of these matters, and (2) directing that the accounts of the trust shall be examined and audited:
Provided that no person shall apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition."
9. According to sub clause 1 of Section 3 an application can be moved before the competent court to direct the trustee to furnish the details with regard to running of the said trust and matters pertaining to the management and property of the trust and secondly the court in any manner can also seek a direction that the account of the trust can be examined and added.
10. It is noticed further that Section 7 of the Act of 1920 provides for following:
"7. Powers of trustee to apply for directions.? (1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon:
Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
(2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the person interested in the trust, or to be published for information in such manner, as it thinks fit.
(3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made."
11. As such, the said provision pertains only to management and administration of the trust and property and suitable direction can be given by by the court in this regard. From perusal of Section 3 and 7 of the Act of 1920 it is noticed that relief with regard to only first two prayers could have been looked into by the said court considering the averments made in the application. It is clear that in exercise of the powers under Section 3 and 7 of the Act of 1920 no direction could have been given by the court with regard to appointment of the applicant as Managing Trustee and such an order could have been passed only on an application being made under Section 73 of the Trust Act.
12. Learned counsel for the revisionist fairly submits that the first prayer does not survive as the relief was directed against the said Rama Shankar Shukla, who has died on 18.5.2012. The only prayer, according to him, which survives is prayer No.3 for appointment as a Managing Trustee which in view of the above quoted provisions of the Act of 1920 were beyond the competency of the said court. Adverting to the challenge made in the present writ petition which is with regard to the order passed on the application for substitution preferred by respondent No.2, it is noticed that respondent No.2 has stated that she is the managing trustee of the said trust and in the said capacity she has filed an application for impleadment in the proceedings initiated at the behest of the revisionist. The Court has duly considered the said application and further considered the fact that respondent No.2 has also substituted herself in proceedings before the High Court where certain other disputes pertaining to the said trust are pending and she is contesting the said cases on behalf of the trust in her capacity as Managing trustee she, therefore, would be a necessary party looking into the reliefs claimed by the revisionist.
13. Learned counsel for the revisionist has filed a supplementary affidavit to demonstrate that opposite party No.2 is not, in fact, the managing trustee of the said trust and, therefore, cannot represent the said trust. Even if for a moment the contention of the revisionist is accepted this aspect could have been looked into by the trial court itself at the time of considering the application preferred by the revisionist under the Act of 1920. Once respondent No.2 has declared herself to be the managing trustee of the said trust then prima facie she is a necessary and proper party and there is no infirmity in the impugned order dated 18.3.2023. Even if the revisionist wants to contest the said facts regarding appointment of respondent No.2 as managing trustee, the same can very well be done in the pending proceedings in case any other prayer of the petitioner survives for consideration before the trial court.
14. It is in aforesaid circumstances that this Court does not find any infirmity with the order dated 18.3.2023. In light of the above, the revision is bereft of merits and is accordingly dismissed.
Order Date :- 25.8.2023 (Alok Mathur, J.) RKM.