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29. It is submitted by the learned senior counsel that the findings rendered by the learned Joint Charity Commissioner that the applicant being the member of Halai Lohana community and can be said to be a person having interest in the trust under section 2(10) as well as beneficiary under section 2(A) of the MPT Act is also totally erroneous and contrary to those provisions and also contrary to the admitted facts.

30. It is submitted by the learned senior counsel that the findings rendered by the learned Joint Charity Commissioner in paragraph (14) of the impugned order that the respondent herein had made further serious allegations against the petitioners herein for commission of contravention of section 41-D of the MPT Act and therefore kvm WP7296.18 considering the close relationship between the settlor and the respondent as well as he being a member of the Halai Lohana community, it was established that he is a person having interest in the trust as required under section 41-D of the MPT Act is also ex-facie perverse. He submits that merely because the respondent has made allegations against the trust cannot be the reason for holding that the respondent is a person having interest in the trust as required under section 41-D of the MPT Act. It is vehemently urged that the relative of the settlor cannot be considered as beneficiary or a person having interest in the trust.

36. Learned senior counsel submits that though the properties of the settlor may be divested in the trust upon formation of the trust, it cannot be argued by the trustees that though the properties of the trust or the management of the trust are not being looked properly and not in the interest of the beneficiaries, the settlor or relative of a settlor cannot even file any application under section 41D of the MPT Act or cannot initiate any other action against the trust or the trustees. He submits that the settlor could have filed a complaint under section 41D of the MPT Act. The respondent being a grandson and being a member of the community and beneficiary, certainly could have filed the said application under section 41D of the MPT Act before the learned Joint Charity Commissioner. He submits that the word 'direct' which was prescribed under section 92 of the Code of Civil Procedure, 1908 also came to be deleted.

kvm WP7296.18

66. A perusal of the impugned order passed by the learned Joint Charity Commissioner clearly indicates that the learned Joint Charity Commissioner has considered the respondent as a person having interest in the trust under section 2(10) of the MPT Act as well as the beneficiary under section 2(2-A) of the MPT Act on the ground that he is a member of Shri Halai Lohana Mahajan community and the grand- son of the settlor. In my view, this finding of the learned Joint Charity Commissioner is ex-facie perverse and contrary to the definition of "person having interest" under section 2(10)(e) of the MPT Act and also the definition of "beneficiary" defined under section 2(2-A) of the MPT Act. The finding of the learned Joint Charity Commissioner that considering the close relationship between the settlor and the respondent as well as he being a member of Shri Halai Lohana Mahajan community, the respondent was a person having interest as required under section 41-D of the MPT Act is also ex-facie perverse and contrary to section 41-D of the MPT Act. In my view, in view of the definition of section 2(2-A) of the MPT Act, the definition of "person having interest" under section 2(10)(e) has to be given a restricted meaning. In my view, even if a person is a member of the community, he does not automatically become a beneficiary defined under section 2(2-A) of the MPT Act.

69. A perusal of the Will and the order passed by this Court sanctioning the scheme does not indicate that the settlor through whom the respondent claims right had reserved any right in the property which was directed to be vest in the trust and was to be used for specific set of beneficiaries. Since the settlor himself did not reserve any right in the property in the Will or such right in the settlor not provided even in the sanction scheme, the question of the grand-son of the settlor claiming any separate right in the property of the trust as the relative of the settlor did not arise. This Court in case of Gajanan Waman Mulay & Ors. (supra) has held that the tenants may be interested in the trust property but that does not make them persons interested in the trust. This court held that the applicants therein or the persons who are hostile and their object is to see that the trust is destroyed could not be considered as person having interest in the trust itself falling within the meaning of section 2(10) of the MPT Act. The principles laid does by the Division Bench of this Court in case of Gajanan Waman Mulay & Ors. (supra) squarely applies to the facts of this case. I am respectfully bound by the said judgment.