Indian Kanoon - Search engine for Indian Law

22. It is submitted by the learned senior counsel for the petitioners that the respondent claimed to be the grand-son of late Sheth Maganlal Himatram Jivanram Barfiwala and being a grand-son of the settlor claimed to be the person having interest in the petitioner no.1 trust in the said application under section 41-D of the said MPT Act before the learned Joint Charity Commissioner. It is submitted by the learned senior counsel that upon settling the trust by the said settlor late Sheth Maganlal Himatram Jivanram Barfiwala, the said settlor was divested of his properties which were forming part of the petitioner no.1 trust unless so specified in the said trust deed providing for continuation of any rights in the property forming part of the said trust deed in his own favour or in favour of his family members. It is submitted that in the trust deed, no such rights in the properties of the trust were reserved in favour of the settlor or in favour of the members of the family members of the said settlor.

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.

56. A perusal of the impugned order passed by the learned Joint Charity Commissioner indicates that the learned Joint Charity Commissioner has held that the respondent was a grand-son (daughter's son) of the settlor of the trust. There was also no dispute that the respondent belonged to Shri Halai Lohana Mahajans community. In paragraph 9 of the impugned order, learned Joint Charity Commissioner has held that the respondent had filed the said application with a specific case that he was a grand-son of the settlor of the trust and belonged to Shri Halai Lohana Mahajans community and therefore, he was a person having interest in the trust as contemplated under section 2(10) 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.