Naraindas Menghraj Nagpal vs Lalchand Menghraj Nagpal

B. Lentin, J.—In this petition u/s 34 of the Indian Trusts Act. disputed questions of law and fact, arise and hence is not maintainable by way of the present procedure which is essentially summary in its nature.

The petitioner and the respondent are trustees in respect of a certain sum of money and the income thereof to be administered in the manner not germane for the purpose of this judgment. The gravamen of the petitioner''s charge is that certain shares standing in the joint names of the petitioner and the respondent are wrongfully held solely by the respondent, whereas those shares should be held by them jointly. The respondent concedes that those shares are held by him but contends that this has been so since 1972 when those shares remained in the sole possession of the respondent with the consent of the petitioner and pursuant to an agreement between the petitioner and the respondent whereby the petitioner agreed that physical custody of the shares would remain with the respondent. This agreement is disputed by the petitioner. Thus a disputed question of fact arises which would necessarily entail evidence and cannot be decided by the present summary procedure u/s 34 of the Indian Trusts Act,

It is further the contention of the petitioner that in law the petitioner and the respondent must be in joint possession of the shares. This proposition is also disputed by the respondent. Hence a disputed question of law arises which also cannot be decided by the present summary procedure. Section 34 reads as under:

"34. Right to apply to Court for opinion in management of Trust-property - Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present question respecting the management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal."

Neither party disputes the obvious proposition that a Trust must be administered jointly by the Trustees. However, this petition cannot be said to pertain to the management or administration of the Trust but to a private quarrel between the Trustees. Section 34 cannot be invoked to resolve such quarrels. It stands to reason that the Court cannot u/s 34 give its opinion, advice or directions when the parties are not ad idem on facts and law. Section 34 cannot be invoked as an invitation to the Court to resolve controversies of fact or law. Section 34 is intended to invoke by a summary procedure the advisory capacity of the Court where there is no dispute between the parties and cannot be resorted to where the Court must adjudicate upon disputed questions of law or fact. Under that section, the Court will not advise Trustees on disputed questions of law or fact but only on undisputed matters of management or administration, such as questions of advancement, maintenance, change of investments, compromise, taking proceedings and so forth. (See In re Lakshmibai I L R 12 Bom. 638.).

Hence in view of the disputed questions of fact and law arising in the present petition, it would not be permissible u/s 34 to enter into these controversies in the summary manner contemplated by that section.

In the circumstances, it would be in the fitness of things to relegate the petitioner to a substantive suit instead of allowing him to take recourse to the present procedure which is essentially summary in nature and from which no appeal lies.

In the result, the petition must stand dismissed. There will be no order as to costs.