Delhi District Court
Sh. Bishan Swaroop vs Sh. Birju on 18 December, 2019
IN THE COURT OF SH. VIPIN KHARB
SCJCUMRC (CENTRAL): TIS HAZARI COURTS: DELHI
E. No. 80240/16
Jogi Dass Trust
4622 & 4650, Mahavir Bazar,
Cloth Market, Delhi - 110006
1. Sh. Bishan Swaroop
2. Sh. Akshat Goel
Through their GPA holder Sh. Sunil goel
3. Sh. Sunil Goel ... Petitioner
VERSUS
Sh. Birju
S/o Late Sh. Rama Kahar
At one shop on ground floor in premises
bearing no. 4650, Mahavir Bazar,
Cloth Market, Delhi110006 ... Respondent
Date of institution of case : 28.11.2015
Date on which judgment was reserved : 16.12.2019
Date on which judgment was pronounced : 18.12.2019
JUDGMENT
1. Present eviction petition, based on bonafide need, u/s. 14(1)(e) read with Sec.25B of Delhi Rent Control Act (in short 'DRC Act') was filed by petitioner namely Jogi Dass Trust through its trustee / General Power of Attorney namely Sh. Sunil Goel against respondent namely Birju alleging following facts :
Page 1 of 23"That Jogi Dass Trust (hereinafter referred as trust) is a private trust and is owner of properties bearing no. 4622 and 4650, both located at Mahavir Bazar, Cloth Market, Delhi110006. Sh. Bishan Swaroop is the settler of the said trust and he has got the said trust registered through registered trust deed before Sub Registrar concerned. The settler is in absolute control of the properties of the said trust for the purpose of meeting out the aims and objects as mentioned in the trust deed. Tenanted premises in question i.e. one shop on ground floor forming part of property no. 4650, Mahavir Bazar, Cloth Market, Delhi which is admeasuring 11' 9" x 5' 10". The said premises are occupied by respondent as tenant who is paying rent @ Rs. 225/ per month excluding other charges. The tenancy in question in favour of respondent is an old tenancy. So far as bonafide need is concerned, it is stated that trust wants to contribute for the betterment of human life by providing medical treatment. Therefore, trust wants to open dispensary for poor and needy persons. The trustees due to old age and personal reason could not achieve the said goals as planned. Therefore, old trustees have resigned from the trust voluntarily and new trustees are appointed.Page 2 of 23
The settler had got supplementary trust deed registered on 23.02.2015 before SubRegistrar concerned. In the said supplementary trust deed aims and objects of the trust are revised by adding following aims and objects. "(f) to establish, conduct, maintenance of dispensary (Homeopathic and Ayurvedic) and institution of similar nature
(g) to function as Noncommunal Trust and as secular organization"
That tenanted shop was let out by petitioner trust to Sh. Rama Kahar, father of respondent, on rent and he was running the tea shop in it. After the death of Sh. Rama Kahar, respondent inherited the tenancy rights and said business. Respondent is tendering rent in respect of suit shop on annually basis @ Rs. 225/ per month to the settler of the petitioner trust.
Since there is no such homeopathy and ayurvedic dispensary operating in nearby area so trust want to open the said homeopathy and ayurvedic dispensary in tenanted premises in question for the benefit of local persons. It is claimed that for running the homeopathy and ayurvedic dispensary the trust will have to purchase homeopathy and ayurvedic medicines and raw material from nearby market i.e. Khari Baoli and Page 3 of 23 Bhagirath Place which is wholesale market famous for medicines, ayurvedic herbal raw material and jaribooti etc for treatment of patients and other needy persons. After purchasing the said material in huge quantity, the same is required to be clean, washed, filtered, grind and mixed for preparation of medicines as per specified ratio, instruction, specific direction and under the guideline of renowned expert having experience in vaid, vaidacharya and pharmacy. Shop in question is most appropriate for the purpose of storing, manufacturing and packing homeopathy and ayurvedic medicines.
After sharing the idea of establishing ayurvedic and homeopathy dispensary by the trustees, their close well wishers have recommended qualified and experienced doctor. Due to non availability of sufficient space, the trust is not able to execute its noble and generous cause. Though requirement of trust is much more but looking at the circumstances of the aim and object of the trust, shop in question is most suitable for the trust. Hence, based on said averment, present petition is filed by the trust."
Page 4 of 232. After receiving summons from the court in prescribed proforma, respondent filed application for leave to defend within statutory period of 15 days which was allowed by Ld. Predecessor of this court, vide order dated 29.08.2016. Matter was then fixed for filing of written statement.
3. Petitioner challenged the said order before Hon'ble High Court vide RC Rev. 574/16 which was dismissed as withdrawn by petitioner on 09.01.2018.
4. In the written statement, respondent challenged the case of petitioner by taking preliminary objections viz. that petition is based on whims and not on bonafide need, that petitioner is neither owner nor landlord of premises in question rather one Lala Bhagwan Dass Jogi Dass Beri is the owner of said premises on the basis of rent agreement dated 15.10.1987, which is still continuing between respondent and said Lala Bhagwan Dass Jogi Dass Beri. Sh. Bishan Swaroop and Sh. Sunil Goel used to collect rent from respondents in their own name by virtue of understanding between respondent, Lala Bhagwan Dass Jogi Dass Beri and Bishan Swaroop and merely because Bishan Swaroop / Sunil Goel collected rent from respondent, it did not mean that they have become owner or landlord of premises in question. Further, if it is assumed that Bishan Swaroop is the owner and landlord of premises in question then also petition is not maintainable as it was filed by Jogi Dass Trust and not Bishan Page 5 of 23 Swaroop in his individual capacity. Apart from that, even if it is assumed that trust is owner and landlord of premises in question then also it is not maintainable as respondents have not recognized the trust as owner/landlord of premises in question through notice of attornment. The documents filed by petitioner are forged and fabricated. Supplementary trust deed dated 23.10.2015 was executed, in order to make out false bonafide need as stated in the eviction petition. The signatures of Bishan Swaroop on said supplementary trust deed did not match with signatures on earlier trust deed dated 15.04.1999. Sunil Goyal as such want to grab the premises in question by forged and fabricated document in order to sell the said premises to third party for his own benefit. No resignation of previous trustees namely Shyam Lal, Bal Kishan and Sanjay Goyal were placed on record by petitioner. Sunil Goyal in the past, tried to take illegal possession of premises in question but could not succeed. Besides that respondent claimed that trust is owner of building no. 4622 and 4650, Mahavir Bazar, Cloth Market, Delhi. There are 7 shops on the roof of second floor of building no. 4622 which are lying vacant and in possession of Bishan Swaroop, Sunil Goyal and Akshat Goyal. Besides that, three shops in building no. 4650 are on rent. So trust has alternative suitable accommodation for the purpose of meeting out its bonafide need. In addition to that trust deed dated 15.04.1999 seemed to be the document which was created for the purpose of giving benefit to the family members of Jogi Dass Trust. Bishan Swaroop and his son Sunil Goyal fraudulently are disposing Page 6 of 23 off various portions of building in question by forging documents. In the past, ground floor of building no. 4622 which was numbered as 4620 consisting of 3 shops was sold by petitioner. Bishan Swaroop and Sunil Goyal are misappropriating the funds of the trust by disposing off the properties and as such there is no bonafide need of the trust. In the close locality where tenanted premises in question is situated, there are 6 ayurvedic and homeopathy dispensaries are available and therefore there is no need for opening ayurvedic and homeopathy dispensary in premises in question as stated in eviction petition. Lastly, tenanted premises in question is the only source of income of respondent and in case they are evicted out from the said premises it will cause serious consequences to them. On merits, case of petitioner was refuted and reference was made to aforesaid preliminary objections.
5. In response to the said written statement, petitioner filed replication in which it refuted the version of respondents and reiterated its version as mentioned in petition. Contents of same are not repeated here for the sake of brevity.
6. After completion of pleadings, matter was fixed for petitioner's evidence.
7. Petitioner examined Sh. Sunil Goel as PW1 who reiterated the facts as mentioned in the petition in his examinationinchief Ex.PW Page 7 of 23 1/A, which are not repeated here for the sake of brevity. He relied upon documents viz death certificate of Bishan Swaroop Ex.PW1/1, GPA dated 10.01.2017 Ex.PW1/2, Trust deed dated 15.04.1999 Ex.PW1/3, supplementary trust deed dated 23.10.2015 Ex.PW1/4, site plan Ex.PW1/5, original rent receipts dated 07.10.2013, 08.10.2014 and 11.12.2015 Ex.PW1/6 to Ex.PW1/8. Petitioner also examined Ms. Sunita Devi as PW2 who tendered in evidence her affidavit Ex.PW2/A. She relied upon documents viz Degree of Ayurvedacharya Ex.PW2/1 and Registration certificate Ex.PW2/2. After examining PW2, petitioner closed its evidence and matter was fixed for respondent's evidence.
8. Respondent examined himself as RW1 and tendered in evidence his affidavit Ex.RW1/A in which he reiterated the facts as mentioned in his written statement. Same are not repeated here for the sake of brevity. He relied upon document viz. Rent agreement dated 15.10.1987 Ex.PW1/R1, copies of complaints Ex.DW1/1 to Ex.DW1/3, site plan and photographs Ex.PW1/R2 to Ex.PW1/R6, copy of sale deed Ex.DW1/4 and photographs showing the existing dispensaries in neighbourhood Ex.DW1/5 to Ex.DW1/9 (said photographs were already exhibited as Ex.PW1/R6(colly). After examining himself, respondent closed his evidence and matter was fixed for final arguments.
9. After hearing final arguments, matter was fixed for judgment.
Page 8 of 23LOCUS STANDI - WHETHER THE PETITIONER TRUST IS THE OWNER OF SUIT PROPERTY.
10. Present eviction petition has been filed in relation to the premises bearing no. 4650, Mahavir Bazar, Cloth Market, Delhi 110006. It has been stated in the petition that the petitioner trust is the owner of the said property and is required to manage the said property in accordance with the aims and objects enumerated in the original trust deed dated 15.04.1999. It is important to note that no rent agreement has been filed on behalf of the petitioner trust highlighting the landlordtenant relationship between the trust and the respondent. However, the petitioner trust has averred in its evidence by way of affidavit "that the respondent is tendering the rent in respect of suit shop on annually basis @ Rs.225/ per month to the settler of the petitioner trust against the valid rent receipts. Therefore, relationship of landlord and tenant exist between the parties hereto." In support of this averment, the petitioner trust has filed a rent receipt Ex.PW1/6 on record in the name of the settler of the trust deed i.e. Sh. Bishan Swaroop.
11. While the respondent has admitted that he is the tenant in the suit property, he has contended that he is a tenant under Sh. Lala Bhagwan Dass Jogi Dass Beri who is the original owner of the suit property. Further, it has been admitted by respondent in the cross examination that he was paying the rent to Sh. Bishan Swaroop on Page 9 of 23 behalf of Sh. Lala Bhagwan Dass Jogi Dass Beri. However, the respondent has categorically denied that he has aver paid the rent to the petitioner trust. In light of the said contention, it is important to ascertain whether the original trust deed dated 15.04.1999 establishes the ownership of the petitioner trust over the suit property.
12. On careful perusal of the original trust deed dated 15.04.1999, Court is of the view that the petitioner trust has failed to establish its title over the suit property. The trust deed nowhere mentions how the suit property came to be vested / surrendered in favour of petitioner trust. The respondent has only admitted to the fact that he was paying the rent to Sh. Bishan Swaroop and has nowhere admitted to paying rent to the petitioner trust. In light of the same, even if it is to be accepted that Sh. Bishan Swaroop was the owner and in complete control of the suit property, the petitioner trust has failed to bring on record any document / evidence to establish that Sh. Bishan Swaroop has vested the suit property in the name of the petitioner trust. The original trust deed, executed by Sh. Bishan Swaroop, nowhere mentions that he has vested the entire immovable property under his control to the petitioner trust.
13. In addition to the above, the respondent has filed a rent agreement dated 15.10.1987 which was executed between Sh. Lala Bhagwan Dass Jogi Dass Beri and Ram Kahar (father of respondent). The respondent has contended that in light of the aforesaid rent Page 10 of 23 agreement, the suit property was let out to the father of respondent and he has continued in tenancy pursuant to the death of his father. The respondent has accordingly contended that the landlordtenant relationship is between Sh. Lala Bhagwan Dass Jogi Dass Beri and the respondent, and the petitioner trust has no right whatsoever in the suit property. Accordingly, the respondent has been able to create a cloud over the title of the petitioner trust over the suit property.
14. Petitioner trust has even failed to file ownership documents of suit property in support of their ownership of suit property. Therefore, in light of the aforesaid discussion, Court is of the view that the petitioner trust has failed to establish, on balance of probabilities, that the suit property was ever vested / surrendered in the name of the petitioner trust (either by Sh. Bishan Swaroop or Sh. Lala Bhagwan Dass Jogi Dass Beri) leading to creation of landlordtenant relationship between the petitioner trust and the respondent.
MAINTAINABILITY - TRUST NO LONGER IN EXISTENCE
15. Even if it is assumed that the suit property came to be vested in the petitioner trust and that it has locus standi to file present petition, it has been borne out from the material on record that the petitioner trust is no longer in existence and hence the present petition is not maintainable on that ground.
Page 11 of 2316. It is important to note that clause 6 of the original trust deed dated 15.04.1999 specifically mentions that the trust shall consists of minimum three trustees. At the time of execution of the original trust deed the following persons were described as the trustees of the trust:
Sh. Bishan Swaroop S/o Late Sh. Ram Sh. Shyam Lal Gupta S/o Sh. Susheel Kumar Gupta Sh. Bal Kishan S/o Late Sh. Ram Sh. Sanjay Goel S/o Late Sh. Ram Purshottam
17. A supplementary trust deed dated 23.10.2015 has been filed on record which has been executed by Sh. Bishan Swaroop S/o Late Sh. Ram. In the said supplementary trust deed it has been recorded that three out of the four trustees i.e. Sh. Shyam Lal Gupta, Sh. Bal Kishan and Sh. Sanjay Goel appointed vide the original trust deed dated 15.04.1999 have voluntarily resigned and their resignations are accordingly accepted. It has been further recorded in the said supplementary trust deed that two new trustees are being appointed in place of the retired trustees i.e. (1) Sh. Sunil Goel S/o Sh. Bishan Swaroop and (2) Sh. Akshat Goel S/o Sh. Sunil Goel.
18. It is a matter of record that the present petition was filed on 28.11.2015. While the present petition was pending Sh. Bishan Swaroop passed away and his death certificate is already on record as Ex.PW1/1. I have already culled out above the relevant clause of Page 12 of 23 the original trust deed which mandates that the trust shall consist of a minimum three trustees. Upon the death of Sh. Bishan Swaroop, the number of trustees have evidently been reduced to two and hence the trust is no longer in existence. Accordingly, Court is of the view that since the trust itself is no longer in existence, therefore, the present petition is no longer maintainable.
MAINTAINABILITY - PETITION NOT PROSECUTED BY ALL THE TRUSTEES
19. Present eviction petition is supported by an affidavit of Sh. Sunil Goel S/o Sh. Bishan Swaroop who is one of the trustees of the petitioner trust. It is important to note that no affidavit has been filed on behalf of the rest of the two trustees i.e. Sh. Akshat Goel and Sh. Bishan Swaroop alongwith the present petition. The affidavit filed on behalf of Sh. Sunil Goel mentions that he is the General Power of Attorney holder of the rest of the two trustees and hence he has filed the present petition on behalf of all the three trustees of the petitioner trust. However, the said general power of attorney, as averred in the affidavit, was not filed alongwith the present petition. Only one general power of attorney has been brought on record by the petitioner trust, i.e. a General Power of Attorney executed by Sh. Akshat Goel in the favour of Sh. Sunil Goel. The said GPA was filed alongwith the list of documents filed by the petitioner trust and is dated 10.01.2017. This clearly shows that no general power of Page 13 of 23 attorney existed in favour of Sh. Sunil Goel to file the present petition on the date of filing of the present petition i.e. 28.11.2015. Furthermore, no general power of attorney has been filed on record by way of which the other trustee i.e. Sh. Bishan Swaroop has authorized Sh. Sunil Goel to file the present petition. Subsequently, Sh. Bishan Swaroop has expired on 19.10.2016 and his death certificate has been brought on record. However, this does not change the fact that no general power of attorney has been issued by Sh. Bishan Swaroop to Sh. Sunil Goel at the time of filing of the present petition. In light of the aforesaid discussion, it is evident that Sh. Sunil Goel could not have filed the present petition as he did not have the authority from rest of the two trustees.
20. Even otherwise, it is a settled position of law that when a suit / petition is being filed on behalf of a private trust, it is the duty of all the trustees to be involved completely in the litigation. It has been held by the Hon'ble Delhi High Court in R. P. Kapur Vs Kaushalya Educational Trust, decided on 21.01.1981, 1982 (21) DLT 46 (SN):
"18. In the case of a private trust where there are more trustees than one, all must join in the execution of the trust. The settlor has trusted all his trustees, and it behoves each and every one of them to exercise his individual judgment, and discretion on every matter and not blindly leave any questions to his cotrustee or cotrustees. Trustees must always exercise their own judgment and not surrender to agent or attorney. The reason for this is the settlor has entrusted the trust properly and its management to all the trustees, and the beneficiaries are entitled to the benefit of their collective Page 14 of 23 wisdom and experience."
21. In the light of the authoritative announcement of the Hon'ble Delhi High Court, Court is of the view that even if it is accepted that the other two trustees executed a general power of attorney in favour of Sh. Sunil Goel, they could not have done so and were required to exercise their own judgment and were required to prosecute the present petition individually as well alongwith Sh. Sunil Goel.
BONAFIDE NEED NOT ESTABLISHED
22. Arguendo, even if it is assumed that the petitioner trust has a locus standi to file present petition and the present petition is maintainable, the petitioner trust has failed to establish that the suit property is required for a bonafide purpose. Before elaborating on this aspect, I must mention here the relevant law and its interpretation in the background of relevant caselaws.
23. Proviso (e) to Section 14 (1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14 (1) are :
(a) The said premises are bonafide required by the landlord either for himself or for his family member.
(b) The landlord or the family members has no other reasonable suitable accommodation.Page 15 of 23
24. These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14 (1) (e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
25. The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provisions has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The bonafide requirement' must be in present and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12 (1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the court is duty bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city / town is available. The judgment / order of the court / Page 16 of 23 authority for eviction of a tenant which does not show that the court / authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment / order in appeal / second appeal / revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine i.e. without fraud or deceit ". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from his angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
26. The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a Page 17 of 23 frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
27. In the present petition, the bonafide need, as claimed, is that the suit property is required for running a homeopathic and ayurvedic dispensary as it has been averred that the said suit property is most suitable for opening the said dispensary as it is on the corner side where patients can easily approach for treatment without any kind of hurdle.
28. It is a matter of record that the petitioner trust, being a private trust, is for the benefit of the family members of late Sh. Jogi Dass. It has been admitted by Sh. Sunil Goel (trustee / GPA of petitioner trust) in his crossexamination that he does not deposit the rent collected from the tenants of all the properties of the trust in the bank account of the petitioner trust and is being instead use for charity purposes on the directions of Sh. Sanjay, who is one of the beneficiaries of the said trust.
29. The original trust deed specifically mentions that the income generated by the trust is required to be invested for the benefit of the family members of late Sh. Jogi Dass. Further, the original trust deed mentions that a charitable purpose can be carried out only upon the instructions of the beneficiaries of the trust (as the wording used in Page 18 of 23 relation to charitable activities is "as desired by the family members"). Therefore, if the trust property is required to be used for any charitable purpose, the said purpose needs to be approved by the family members of late Sh. Jogi Dass. However, no such document has been brought on record by way of which the family members of late Sh. Jogi Dass have authorized the construction of a homeopathic dispensary. In light of the above, it is evident that the objectives of the trust are not being followed by the petitioner trust, especially in light of the fact that the income generated by the trust is not being utilized for the benefit of the family members of the petitioner trust. Therefore, since the bonafide need, as pleaded, is not for the benefit of the family members of late Sh. Jogi Dass and since no authorization has been received from the family members of late Sh. Jogi Dass to carry out any charitable activity in the suit property, the present requirement, as pleaded by the petitioner trust, cannot be accepted as a bonafide need.
OBJECTIVE OF TRUST CHANGED WITHOUT THE CONSENT OF BENEFICIARIES
30. The fact that the petitioner trust is not adhering to the objectives of the trust becomes even more evident from the circumstances surrounding the execution of the supplementary sale deed dated 23.10.2015.
Page 19 of 2331. The original trust deed dated 15.04.1999 was executed / settled by Sh. Bishan Swaroop S/o Late Sh. Ram and it was created for the benefit of family members of late Sh. Jogi Dass, as provided for in the original trust deed. The said trust deed has the following aims and objectives :
"(a) to acquire, look after and manage movable and immovable properties of the trust
(b) to lease out any of the property of the trust as deems fit and proper by the trustees
(c) to transfer any of the property of the trust as deems fit and proper by the trustees.
(d) to invest the income for the benefit of the family members of late Sh. Jogi Dass or for the purpose as desired by the family members of late Sh. Jogi Dass such as construction of Dharamshala, Mandir, Ashram, Vyayamshala, Yogshala, Dispensary, or any other charitable purpose."
32. A supplementary trust deed dated 23.10.2015 has been filed on record which has been executed by Sh. Bishan Swaroop S/o Late Sh. Ram. The supplementary deed amended the aims and objectives of the original trust deed by the addition of the following objective :
"To institute / file any case, suit, petition, appeal, complaint, writ, eviction petition under Delhi Rent Control Act against the respective tenants."
33. As contended by the ld counsel for the respondent, such a modification could not have been done without the consent of the beneficiaries of the trust. The law is clear on this aspect. It has been held by the Hon'ble Delhi High Court in R. P. Kapur Vs Kaushalya Educational Trust, decided on 21.01.1981, 1982 (21) DLT 46 (SN) :
Page 20 of 23"9. In my opinion, the trust is a private trust and the supplementary deed dated October 30, 1979 is void and is of no effect. The original trust deed dated January 20, 1972 was executed by Srimati Kaushalya Devi, the author of the trust. Clause 6 of that deed is the crucial provision on which the decision of this case depends. The object of the settler was to create a family settlement in perpetuity. The trust property was to be applied for the benefit of the settler's descendants from generation to generation. It was a trust for the benefit of the settler's family, children and descendants.
28. Such is the instrument which Kaushalya Devi propounded as the trust deed. The trustees appointed under the deed changed all this. They made "additions" to the objects of the trust. This was on the specious ground of expansion of trust activities. Now charity was given a place of pride in the amended objects of the trust. But the question remains whether the trustees can amend or vary the original trust of the settlor. Now it is one of the fundamental principles of the law of trusts that the trustees cannot rewrite the trust instrument or ado to or alter the objects of the trust founded by the author. The object of the trust does not depend on the whims of the trustees because if it is left to them to add to or alter the objects of the trust the courts cannot enforce or control such a trust.
29. The most important duty of the trustees is the duty to obey directions of the author. They cannot deviate from the terms of the trust. The directions can be modified by the consent of all the beneficiaries collectively, or by the court. On behalf of the beneficiaries who are not sui jurisdiction the court can give consent. But what about the beneficiaries who are not yet in existence. The trust created by Smt. Kaushalya Devi was designed to benefit her present descendants and the unborn generation of descendants. It is intended to go on till there is failure of all the grantor's descendants and the total extinction of the family. Or until the rule against perpetuity comes into play. Or until the property itself has vanished away under the wasting agencies of litigation such as this or malfeasance or misfortune.
34. On a conjoint reading of the two trust instruments dated November 20, 1972 and October 30, 1979 which are Page 21 of 23 referred to in the plaint and annexed as a part thereof I have come to the conclusion that the trust founded by Shrimati Kaushalya Devi was a private trust. It is not a trust of a public character for charitable purpose. The amendment of the original deed by a supplementary deed is void and of no effect. It is not authorized by the trust instrument. The trust remains a family trust."
34. It is not in dispute that the present trust is a private trust as both the parties have submitted the same and the same is also discernible from the bare reading of the original trust deed dated 15.04.1999, in which it is stated that the present trust is for the benefit of the family members of late Sh. Jogi Dass. Therefore, in light of the aforesaid case law, it was mandatory for all the beneficiaries of the trust deed to give their consent prior to any amendment / modification of the original trust deed dated 15.04.1999. However, no such consent has been brought on record by way of any documentary / oral evidence. In light of the failure of the petitioner to prove that the supplementary trust deed dated 23.10.2015 has been executed with the consent of the beneficiaries of the trust, the said supplementary trust deed is null and void and cannot be considered. Accordingly, the objective mentioned in the supplementary trust deed i.e. filing of eviction petitions, which has been relied upon by the petitioner trust to establish the maintainability of the present petition, can also not be relied upon in light of the fact that the supplementary trust deed is void.
Page 22 of 2335. Lastly, it is important to note that the petitioner trust has filed two petitions - (1) for the eviction of property on ground floor and (2) for the eviction of property on the first floor. However, it is an admitted position that 7 rooms are lying vacant on the second floor. Since so many rooms are lying vacant on the second floor, the alleged bonafide purpose can easily be carried out from the second floor and there is no requirement for evicting the petitioner from the ground floor. Therefore, in light of the fact that a suitable alternative accommodation is already at the disposal of the petitioner trust, the petitioner has failed to satisfy the requirement of Sec. 14(1)(e) DRC Act. Hence, present petition is dismissed.
36. File be consigned to Record Room after necessary compliance.
Announced in open court (Vipin Kharb)
Dated 18th December, 2019 SCJCumRC (Central)
Tis Hazari Courts: Delhi
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