Manmohan Singh Gauri vs Punjab & Sindh Bank Ltd

The revision petition has been filed to set aside the order dated 572000 passed by the learned Addl District Judge, Srinagar. '

Record of trial court reveals that grandfather of the present petitioner created a Trust on 25th of Maghar 2003 for his land measuring 119

Kanals and 17 Marias Khewat No. 23 situated at village Zoonimar Pati Soura, tehsil Khas. The trust land was acquired by the state government in

the year 1967, the compensation of the land was deposited in the Punjab and Sindh Bank in the name of Bhai Anant Singh the original trustee.

Petitioner on the death of his grantfather and then his father filed suit seeking declaration and mandatory injunction that the defendant Bank may

correct the Bank record and he as chairman of the Trust may be permitted to operate the trust funds deposited in the Punjab and Sindh Bank.

Pending disposal of the suit in the court of Addl District Judge, Srinagar, Secretary Intizamia Committee Gurdwara Prabandhak Chattipadshahi,

Srinagar submitted an application that the may be impleaded as a party respondent in the main suit. The trial court apparently impressed by the

grounds taken in the application, allowed the request vide order dated 572000. It is the validity of this order which has been challenged in the

present proceedings.

Heard the learned counsel for the parties, considered the submissions and perused the entire record.

The record of the trial court reveals that the plaintiff has claimed the following reliefs in his plaint:

a) It be declared that the plaintiff is the chairman of Bhai Anant Singh Trust, which Trust was created vide Deed of Trust registered on 21112003

BK followed by the settlement Deed dated 1081976 in reference No. 3 of 1967.

b) It be declared that the plaintiff by virtue of being chairman of Bhai Anant Singh Trust is entitled to operate saving bank supported by the

resolution dated 1951992 passed by the Board of Trustees;

c) It be further declared that the plaintiff is entitled to en cash upon maturity date and or before maturity date of FDR No. 222637/63/92 dated

1231992 and 222636/62/92 dated 1231992 and to utilize the money thereof for carrying out the objects of the Trust;

d) That by a mandatory injunction defendant Bank be directed to issue fresh FDR substituting FDR No. 222637/63/92 in the name of Bhal Anant

Singh Trust only without mentioning 'Intizamia Committee Gurdwara Prabandhak Committee Chatyi .Padshahi' and pledged to the District and

Sessions Judge, Srinagar;

e) That by a mandatory injunction defendant Bank be directed to correct its records and to honour ail cornmunications/cheques/other negotiable

instructions for and on behalf of Bhai Anant Singh Trust when such communication/cheques/negotiable instruments are signed/executed by the

plaintiff herein as chairman of the trust and to pay the amount covered by such negotiable instruments without any demur, acknowledging and

accepting the position of the plaintiff as the chairman of the trust"".

The main ground taken by the applicant/respondent No. 2 herein for pleading as party defendant before the trial court are that theplaintiff is not

the chairman of the trust, the Board of Trustees constituted by the plaintiffpetitioner is nonexistent entity; that the Trust funds are meant for the

benefit of the Sikh community; that there was a settlement in the reference between the settler Bhai Anant Singh and Secretary of the Gurdwara

Prabandhak Committee; that the amount of compensation of land received from the state shall be deposited in the name of Gurdwara Prabandhak

Committee. Therefore, the applicant/respondent No. 2 is the necessary party and may be impleaded as a defendant.

From the perusal of the Original Trust Deed, it is manifestly clear that the Trust was created by the Settler (Original Trustee) Bhai Anant Singh

for the land measuring 119 Kanals 17 Marias comprising under Khewat No. 2""3 and situated in village Zoonimar PatiSoura, Tehsil Khas. Clause

(2) of the Trust Deed as well as the settlement in reference provides that on the death of the settler, his eldest son would discharge the duties as the

chairman of the trust and this arrangement would continue on the death of each son by installing the eldest son as chairman. Clause (4) and (9)

provide that the trustee shall have all powers to spend any sum out of the income of the Trust. Clause (11) categorically provides that no

organization or Gurdwara Chati Padshahi or any other body shall have any right with the Trust property or income to the exclusion of the Trustees.

The aspect which is to be considered is whether in the facts and circumstances of this case, the applicants are necessary and proper parties or not.

The applicants on the basis of being beneficiaries claimed interest in the Trust property and on this right they claim to be necessary parties in the

suit. Whether an applicant may or may not be impleaded as a party has to be decided on the facts and circumstances of each case and as provided

under 0.1 Rule 10 (2) CPC, which reads as under;

Court may strike out or add parties:

The court may at any stage of proceedings, either upon or without the application of either party, and on such terms as may appear to the court to

be just, order that the name, of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who

ought to have been joined whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court

effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added.

In order to appreciate the ambit and scope of order 1 Rule 10 (2) CPC, guidelines in judicial decisions are reproduced as under;

(i) Whether the controversy can be effectively and conclusively adjudicated upon on all issues involved in the litigation;

(ii) Whether due to the mistake of the parties a necessary and proper person has not been arrayed. It is the duty of the court to implead the

necessary and proper party;

(iii) Whether the presence of the person as a party is necessary in order to make the person bound by the result of the litigation for complete

conclusion of the controversy;

(iv) Although no relief is claimed against a party, but the presence of the party is appropriate and proper for effective decision of the case;

(v) Whether the impleading of the party is necessary in order to enforce the rights of the parties;

(vi) Whether impleading of necessary and proper party is essential to avoid multiplicity of proceedings and avoidable litigation.

The applicants in their application do not deny the fact that the plaintiff is the grandson of the settler Bhai Anant Singh and as per clause (2) of

the Trust Deed he, as the eldest grandson can be made chairman of the Trust. The applicants however, disputed the appointment of the

plaintiffpetitioner as chairman on the grounds that the trustees who nominated the plaintiffpetitioner as chairman were not valid Trustees of the

Board.

On the facts and circumstances as reflected above prima facie there is nothing to indicate that the plaintiff's suit cannot be effectively,

conclusively and completely adjudicate and decided without impleading the applicants as a party. Conversely, the applicants have not made out a

case to come under the above reflected guide lines to be made a party.

As reflected above the settler has in the Trust Deed, clearly stated that after his death his eldest son shall discharge the work and duties of the

Trust. It is also provided that the Gurdwara Chati Padshahi or any other Sikh organisation or any other body shall have no right of any nature with

the property of the Trust or with its income. The deed shows that the income of the Trust will be spent on the advice of the trustees to help Sikh

widows, students etc. It is thus evident that Sikh community and the Chati Padshahi Gurdwara are beneficiaries under the Deed of Trust.

It is understandable that the applicants apprehend breach but for that the applicants have a remedy under section 92 of Civil Procedure Code.

The relevant provision is reflected as under:

Public Charities (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or

religious nature or where the direction of the court is deemed necessary for the' administration of any such trust, (the Advocate General or two or

more persons having an interest in the trust and having obtained the leave of the court) may institute a suit, whether contentious or not, in the

Principal Civil Court of original jurisdiction or in any other court empowered in that behalf by (the Government) within the local limits of whose

jurisdiction the whole or any part of the subject matter of the trust is situated, to obtain a decree

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(d) directing accounts and inquiries;

declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

settling a scheme;

(h) granting such further or other relief as the nature of the case may require"".

From the plain perusal of the above provision, it .is laid down that the remedy on apprehension of breach of express or constructive Trust

created for a public purpose or a charitable purpose or religious nature lies before a Civil Court in accordance with the above provision. Even if it

may be assumed that the allegations made in the application for impleadment are true even on that analogy the beneficiaries can approach the Civil

Court against the plaintiffpetitioner for remedial measures. The applicants seeking impleadment cannot be arrayed as defendants in the suit because

of their status as beneficiaries and for the reasons reflected above. Section 92 provides sufficient safeguards and protection against any action of

trustees to administer the income derived from the corpus of the Trust.

The trial court has exceeded its jurisdiction by passing the impugned order, which has to be set aside. The revision petition is allowed. The

impugned order is set aside.

The record be sent to the trial court forthwith. Parties through their counsel are directed to appear before the trial court on 2792001.