Calcutta High Court
Prochy N. Mehta & Anr vs Noshir Tankariwala & Ors on 11 May, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 8 of 2023
IA No. GA 9 of 2023
In CSOS 1 of 2017
Prochy N. Mehta & Anr.
Versus
Noshir Tankariwala & Ors.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Anirban Kar, Adv.
Mr. Munshi Ashiq Elahi, Adv.
Ms. Ajeeya Choudhury, Adv.
Ms. Snigdha Das, Adv.
.....For the Plaintiffs.
Mr. R.K. Khanna, Adv.
Mr. Aman Khemka, Adv.
.....For the defendant nos. 2 & 3
Mr. Phiroze Edulji, Adv.
Ms. Samira Grewal, Adv.
....For the intervenor
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Hearing Concluded On : 22.03.2023
Judgment on : 11.05.2023
Krishna Rao, J.:
1. The applicant has filed the present application being GA 8 of 2023 praying for dismissal of the suit as abated since the plaintiffs have not taken any steps for deletion of the name of the defendant no. 1 upon his death on 5th September, 2020 and by not taking any steps for adding Mr. Ratan Postwalla and Mr. Rustom Daroga as defendants in place of the defendant no. 1.
2. The plaintiffs have filed an application being GA 9 of 2023 praying for amendment in the plaint originating summon by recording the death of defendant no. 1 and by adding the name of two new trustees as defendant no. 1A and 1B.
3. The plaintiffs have filed the originating suit being CSOS No. 1 of 2017 seeking the determination of the following queries :
i. Whether children of Parsi women professing Zoroastrian faith married to a non-Parsi, properly initiated to Zoroastrian faith by performance of Navjot Ceremony, are "member of Parsi community professing Zoroastrian faith" within the meaning of Clause 3 of Indenture of Trust dated 19th September, 1915?
ii. Whether children of Parsi women professing Zoroastrian faith married to a non-Parsi, properly initiated to Zoroastrian faith by performance of 3 Navjot Ceremony, have a right to worship and perform religious rites and ceremonies at the Late Ervad Dhunjeebhoy Byramjee Mehta's Zoroastrian Anjuman Atash Adaran?
iii. Whether the provisions of Indenture of Trust dated 19th September, 1915 prevent the children of Parsi women professing Zoroastrian faith married to a non-parsi, properly initiated to Zoroastrian faith by performance of Navjot Ceremony, from performing worship and religious rites and ceremonies at the Late Ervad Dhunjeebhoy Byramjee Mehta's Zoroastrian Anjuman Atash Adaran?
4. During the pendency of the originating suit, the defendant no. 1 died on 5th September, 2020 and after the death of defendant no. 1, an election was held on 29th May, 2022 wherein two new trustees were elected, namely Mr. Ratan Postwalla and Mr. Rustom Daroga to the said Trust.
5. Mr. Phiroze Edulji, Learned Advocate representing the applicant herein submits that the plaintiffs had the knowledge that the defendant no. 1 has expired and after the death of defendant no. 1, two new trustees were elected to the said Trust but the plaintiffs have not taken any steps for recording the death of defendant no. 1 and for addition of the name of two new trustees in place of the defendant.
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6. Mr. Edulji submits that as the plaintiffs have not taken any steps after the death of defendant no. 1 and thus the suit filed by the plaintiffs are abated.
7. Mr. Dhruba Ghosh, Learned Senior Advocate representing the plaintiffs submits that after filing of the present application by the applicant, the plaintiffs have made enquiry and ascertained that the defendant no. 1, who is one of the trustee died on 5th September, 2020.
8. Mr. Ghosh submits that the applicant being the President of The Parsi Zoroastrian Association filed the present application praying for dismissal of suit as abated but the applicant is neither a proper party nor a necessary party in CSOS No. 1 of 2017 and thus the applicant is not entitled to make such application.
9. Mr. Ghosh submits that the defendants were at all material time represented by Advocates but no formal notice of death nor the details of the subsequent appointed trustees of the said Trust neither provided to the plaintiff nor was brought to the notice of this Court and due to which the plaintiffs have not taken any steps for recording the death of the defendant no. 1 and for adding the newly appointed trustees.
10. Mr. Ghosh submits that even after the death of the defendant no. 1, right to sue survived and the remaining trustees to the Trust continue to represent the trust in the present suit. He further submits that the 5 defendant no. 1 was made as a party in the suit in the capacity of a trustee and thus suit does not abate on his death as remaining trustees are already on record.
11. Mr. Ghosh relied upon the following judgments :
i. 1993 Mh.L.J 588 (Abaji Daulata Yadav -vs- Dhondiram Jagedevrao Yadav & Ors.).
ii. (1976) 1 SCC 103 (Shri Rikhu Dev, Chela Bawa Harjug Dass
-vs- Som Dass (Deceased) Through His Chela Shiam Dass).
iii. (2013) SCC OnLine Cal 146 (Raj Grihi Ram -vs- Anand Kumar Shaw).
12. Mr. Edulji representing the applicant submits that the averments made by the plaintiffs in the affidavit-in-opposition GA No. 8 of 2023 and GA 9 of 2023 filed by the plaintiff are totally false and misleading as after the demise of the defendant no. 1 on 5th September, 2020, an Online Memorial Service was held for him on 14th September, 2020 wherein both the plaintiff no. 1 and her husband Numazar Dorab Mehta both spoke on the said occasion. Mr. Edulji further submits that after the demise of defendant no. 1, another Online Memorial Service was held for him on 12th September, 2020 and the said event was streamed live on YouTube and from the photographs of the YouTube, it appears that plaintiff no. 1 and her husband were present. 6
13. By referring the same, Mr. Edulji submits that the claim of the plaintiffs that only after receipt of the copy of application of GA 8 of 2023, the plaintiffs ascertained that defendant no. 1 died on 5th September, 2020 is a false and misleading statement and the said statement is made only for the purpose of getting favourable order from this Court.
14. Mr. R. K. Khanna, Learned Advocate representing the defendant nos. 2 and 3 submits that the plaintiff has not come before this Court with clean hands and had suppressed the real facts and to obtain favourable order has made a misleading and false statement and as such the application filed by the plaintiff being GA 9 of 2023 is to be dismissed and the application filed by the applicant being GA 8 of 2023 is liable to be allowed.
15. Mr. Khanna has relied upon the following judgment :
i. (1994) 1 SCC 1 (S.P Chengal Varaya Naidu BY LRS. -vs-
Jagannath (Dead) by LRS & Ors.)
16. Heard the Learned Counsel for the parties, perused the materials on record and the judgment relied by the parties.
17. The plaintiffs have filed the originating summon suit seeking determination of the queries mentioned in paragraph 3 above. Admittedly, the property belongs to a Trust and the plaintiffs and the defendants are the trustees of the Trust Estate. The defendant no. 1 7 died on 5th September, 2020. After the death of the defendant no. 1, two new trustees were elected in the said Trust.
18. The applicant of GA 8 of 2023 are not a party to the suit but being a Parsi Zoroastrian Association have made an application for addition as defendant in originating summon suit being GA 1576 of 2017 and accordingly this Court by an order dated 10th January, 2019 permitted the applicant to file its pleading in respect of the questions formulated in paragraph 15 of the plaint and make submission at the time of hearing of the originating summon suit. The said order was carried in appeal and the Appellate Court by an order dated 12th February, 2020 clarified that the applicants were given a right of audience and were allowed to file pleadings but were not formally added as parties.
19. In view of the orders passed by this Court dated 10th January, 2019 and the order passed by the Appellate Court dated 12th February, 2020, it is clarified that the applicants of GA 8 of 2023 are not the parties to the suit and were only allowed to participate in the proceeding since, interpretation of the Trust Deed is involved which may affect the Parsi Community at large.
20. In the judgments referred by Mr. Ghosh in the case of Abaji Daulata Yadav (supra), the Hon'ble Bombay High Court held that :
"Only those trustees who are elected or appointed under the Scheme of the Trust can step in his shoes and continue the suit. Such a new trustee could not 8 by any stretch of imagination be said to be legal representative of the deceased trustee. In any case, the right of the deceased plaintiff to act as a trustee would not pass on to the new trustee on the death of the deceased trustee. The new trustee would get his right not by virtue of death of the previous trustee but because of his being elected or appointed as a trustee under the Scheme of the trust................ Now obviously such a case will not be covered by Order 22, Rule 3, which contemplates the legal representatives of the deceased plaintiff being brought on record. Since, the new trustee would not be a legal representative of the deceased trustee, in that sense there is no question of the new trustee applying for being brought on record under the Provisions of Order 22, Rule 3 of the Code. Obviously, such a case would be covered by Rule 10 of Order 22 of the Code.
It was further held that unlike Rule 3 of Order 22, no limitation is prescribed for presentation of application under Rule 10 and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or the defendant devolves and hence the right to make an application under the latter rule is right which accrues from day to day and can be made at any time during the pendency of the suit and there is no abatement under that rule."
21. In the judgment reported in Shri Rikhu Dev, Chela Bawa Harjug Dass (supra), the Hon'ble Supreme Court held that :
"The Court took the view that newly appointed trustees are not legal representative of the trustees who had filed the suit and thereafter died during the pendency of the suit, that they can be added as parties under Order 22 Rule 10 notwithstanding the fact that the period of limitation for an application to implead them under Order 22, Rule 3 had elapsed.
22. The judgment passed by the Hon'ble Division Bench of this Court in the case of Raj Grihi Ram (supra), the Hon'ble Court held that "there is no 9 limitation to take out an application under Order 22, Rule 10 of the Code of Civil Procedure or in the Limitation Act, 1963".
23. In the present case also the plaintiffs have filed the suit for determination of queries by this Court. The defendant no. 1 was one of the trustees and as such he was made as a party defendant in the originating summon suit. The defendant no. 1 died during the pendency of the suit and after the death of the defendant no. 1, two new trustees, namely Mr. Ratan Postwalla and Mr. Rustom Daroga were elected to the said Trust on 29th May, 2022. The plaintiffs have filed an application for recording the death of defendant no. 1 and adding the name of the new elected trustees in place of the defendant no. 1. In view of Rule 10 of Order 22, there is no delay for filing the said application by the plaintiff for recording the death of defendant no. 1 and addition of new elected trustees and thus the argument made by Mr. Edulji and Mr. Khanna is not acceptable.
24. In view of the above, GA 8 of 2023 filed by the applicant is dismissed and prayers (a), (c) and (d) of the Master Summon of GA 9 of 2023 are allowed.
(Krishna Rao, J.)