Madhya Pradesh High Court
Rakesh Kumar @ Gopal Agarwal vs Phoolchand Agarwal on 2 September, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:15096
1 MP-5770-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 2 nd OF SEPTEMBER, 2024
MISC. PETITION No. 5770 of 2022
RAKESH KUMAR @ GOPAL AGARWAL
Versus
PHOOLCHAND AGARWAL
Appearance:
Shri Somnath Seth - Advocate for the petitioner.
Shri Prashant Sharma - Advocate for respondent No.1.
ORDER
The present petition, under Article 227 of the Constitution of India, has been filed by the petitioner being aggrieved by order dated 27.07.2022 passed by the Principal District Judge Bhind in M.J.C. No.41 of 2022 whereby an application filed under Section 73 of the Indian Trusts Act, 1882 by the petitioner for appointing him as trustee in view of Clause 10 of Guidelines issued in Private Trust Deed was rejected.
2. Short facts of the case are that one Rajkumari Bai, W/o Chhotelal Agrawal, resident of District Bhind, had executed one Declaration of Trust which was registered on 06.04.1978 and had formed one Trust, namely, Smt. Rajkumari Bai, w/o Chhotelal Agrawal Dharmarth Trust and constituted a Managing Committee for carrying out the management of trust which would work for religious charitable and beneficence (benevolence) purpose. Initially, 11 persons were appointed as trustees and they were given powers Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-09-2024 10:49:02 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:15096 2 MP-5770-2022 to appoint two more trustees on the basis of majority.
3. As per Clause 2 of the said declaration of trust, the trust was constituted to manage one Dharmshala which would be used for charitable purpose for giving accommodation to the travellers and the name of Dharmsala would be of 'Smt. Rajkumari Bai, W/o Chhotelal Agrawal Dharmarth Trust'.
4. As per Clause 7 of the said declaration of trust, initially husband of Smt. Rajkumari Bai was appointed as the president of the trust and one Vijaysaran Mitra as vice-president and further one Shrikrishna Agrawal was appointed as Mantri, one Kailash Chandra Ben as Sahmantri and one Ramkumar Agrawal was appointed as Treasurer.
5. As per Clause 8 of the said declaration of trust, the post holders were to be elected every year but it was stipulated that till her husband Chhotelal Agrawal lives, he shall be the president and thereafter, Phoolchand, who was from the family of her husband, would be the president and him, only any senior member of the family of her husband shall be the president of the trust.
6. As per Clause 6 of the said declaration of trust, income from the shops carved out in dharmshala as well as any other income shall only be used for the purpose of trust.
7. As per Clause 10 of the said declaration of trust, after the death of one Munna Lal in his place, one Kishanlal Agrawal, S/o Shivcharan Lal would be the trustee and after him, his sons shall be the trustee/s.
8. In the light of aforesaid Clause 10, the petitioner being son of Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-09-2024 10:49:02 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:15096 3 MP-5770-2022 Kishanlal had moved an application under Section 73 of the Act of 1882 and had prayed for his appointment as a trustee. The aforesaid application was rejected by the Court below holding that since the provisions of the Act of 1882 are not applicable to the private religious or charitable trust or endowments, therefore, the application is not maintainable. Aggrieved by the aforesaid, the present petition has been filed.
9. Learned counsel for the petitioner has argued that the Court below had not considered the application in view of Clauses as mentioned in the declaration of trust deed where under Clause 10 of the said declaration of trust, it has specifically mentioned that successor of the trustee in place of Kishanlal Agrawal, S/o Shivcharan Lal would be his son and the petitioner being son of Kishan Lal Agrawal is entitled to get himself registered as a trustee in trust in dispute, but in-spite of specific Clause in the deed, the application has been rejected which is per se illegal.
10. It was further submitted that the judgment in the matter of Shanti Devi vs. State of Delhi reported in 1982 0 AIR (Del.) 453 which has been referred to by the learned trial Court is not applicable to the facts of the case but even then, mechanically the impugned order has been passed which is per se illegal. It was thus prayed that the present petition be allowed and while setting aside the order impugned, name of the petitioner be directed to be incorporated as one of the trustees of the trust, namely, Smt. Rajkumari Bai, w/o Chhotelal Agrawal Dharmarth Trust.
11. On the other hand, learned counsel for the respondent had opposed the prayer so made by counsel for the petitioner and had submitted Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-09-2024 10:49:02 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:15096 4 MP-5770-2022 that no illegality or perversity has been committed by the Court below in rejecting the application holding that since the provisions of Act of 1882 are not applicable to the trust in question, therefore, the application itself is not maintainable.
12. It was further submitted that as per Savings Clause of Section 1 of the Act of 1882, nothing in the said Act would effect or would apply to public or private religious or charitable endowments and admittedly, from bare perusal of the trust deed, it would be evident that the trust, namely, Smt. Rajkumari Bai, w/o Chhotelal Agrawal Dharmarth Trust, was a private religious and charitable trust formed for benefit of the travellers who would stay in dharmshala called 'Smt. Rajkumari Bai, w/o Chhotelal Agrawal Dharmarth Trust' and could be said to be a religious purpose and any income of the trust out of the shops and other way shall be used for the trust purposes only which goes to show that it was basically a private religious trust not for benefit of any individual member either of the trust of any family member and though certain trustees were not family members but the entire management would be controlled by the family members and therefore, as per the Savings Clause of Section 1 of the Act of 1882, the application has been rightly rejected being not maintainable. It was thus prayed that the present petition being devoid of any merits be dismissed.
13. Heard counsel for the parties and perused the record.
14. It is beyond any dispute that a Hindu is entitled to dedicate his property for religious and charitable purposes wherefor even no instrument in writing is necessary. A Hindu, however, in the event, wishes to establish a Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-09-2024 10:49:02 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:15096 5 MP-5770-2022 charitable institution must express his purpose and endow it. Such purpose must clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees. Subject of endowment, however, must be certain. Dedication of property either may be complete or partial and when such dedication is complete, a public trust is created in contra-distinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant, there must exist cogent and satisfactory evidence of conduct of the parties and user of the property, which show the extinction of the private secular character of the property and its complete dedication to charity.
15. A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. In absence of a formal and express endowment, the character of the dedication may have to be determined on the basis of the history of the institution and the conduct of the founder and his heirs. Such dedication may either be compete or partial. A right of easement in favour a community or a part of the community would not constitute such dedication where the owner retained the property for himself. It may be that right of the owner of the property is qualified by public right of user but such right in the instant case, as noticed hereinbefore, is not wholly unrestricted.
16. Apart from the fact that the public in general and/or any Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-09-2024 10:49:02 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:15096 6 MP-5770-2022 particular community did not have any right of participation in the management of the property nor for the maintenance thereof any contribution was made is a matter of much significance. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary. A benevolent act on the part of a ruler of the State for the benefit of the general public may or may not amount to dedication for charitable purpose. It appears that the family of the donor retained the control over the property and, therefore, a complete dedication cannot be inferred far less presumed.
17. Herein case, the deed of the trust itself stipulates that itt was created with the sole object of improvement and better management of Dharmshala and the owner had not parted with the ownership and control of the Dharmshala was handed over to the trustee for improvement and better management which cannot be read as creation of a public trust.
18. Thus when the deed of trust was executed with the sole purpose of improvement and better management of Dharmshala and owner never parted with the ownership or their control and trustees were there only to manage the Dharmshala, hence, it was just having a private character and further with the intention made by the executor of the trust, it could be inferred that it was for private religious and charitable purpose and when the creation of the trust was for private religious and religious endowments then the provisions of Act of 1882 definitely would not be applicable.
19. Thus, this Court, in the light of aforesaid discussion, finds that no illegality or perversity has been committed the Court below in rejecting Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-09-2024 10:49:02 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:15096 7 MP-5770-2022 the application filed under Section 73 of the Indian Trusts Act, 1882 by the petitioner.
20. Accordingly, the present petition being no sum and substance is hereby dismissed.
(MILIND RAMESH PHADKE) JUDGE pwn* Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-09-2024 10:49:02 AM