Biswanath Mukherjee & Ors. vs Ranjit Kumar Sen & Ors.

Subhasis Dasgupta, J

This Second Appeal is directed against the judgment and decree dated 29th July, 2013, passed by learned Additional District Judge, 1st Court, Purulia

in Title Appeal No. 75 of 2007, reversing the judgment and decree dated 15th September, 2007, passed by learned Civil Judge (Senior Division),

Purulia in Title Suit No. 217 of 1999, whereby the learned Trial Judge decreed the suit on contest against the respondents/defendants declaring

appellants/plaintiffs nos. 1,2,4,6 to 10 and proforma defendants nos. 9, 10,12, and 13, as the trustees of trust board of Shri Srimat Krishnanada Trust

for looking after the management of the Ashram as well as all the properties of the said Ashram with a further order, restraining principle defendant

nos. 1 to 8/respondents from interfering with the management of the said Ashram as well as properties of said Ashram.

Appellants'/plaintiffs' case, precisely, is that Swami Krishnananda Maharaj created a trust on 28.02.1958, divesting all the properties of Ashram,

known as Rakab Shri Shri Ramkrishna Ashram, in Mouza Chargali, which he himself set up, in favour of a trust known as ""Shri Shri Ramkrishna Trust

@ Shri Shrimat Krishnananda Trust"", nominating therein seven (7) persons, as trustees, excluding himself as creator of such deed and trust.

Swami Krishnananda Maharaj was a disciple of Shri Shri Sarada Ma, and he acquired some properties from his own followers before setting up his

Rakab Shri Shri Ramkrishna Ashram.

It was mentioned in Clause-'6' of such deed of trust that in the event of tendering resignation by any of the trustees, or sudden death of trustee, or any

incapacity rendering a trustee to be incapable from discharging his duty, remaining trustees would induct/appoint new trustee in place of previous

trustee. As per Clause-'9' of such deed of trust, the trustees would perform all such acts, framed rules as are necessary for proper administration of

the trust.

During the lifetime of Shri Swami Krishnananda Maharaj, he had the occasion to remove two (2) of such trustees, but against which there could not

be any substitution of trustees. The creator of such trust namely Swami Krishnananda Maharaj, left for his heavenly abode on 24.10.1963. After the

demise of the creator, Swami Shrimat Swatmananda Maharaj and Fakir Gorai, came to be inducted as new trustees by the surviving trustees on the

strength of resolution dated 13.12.1964. Swami Swatmananda Maharaj was, however, elected as president of the trust. Subsequently, by reason of

attainment of contingencies occurred for expressing inability to perform as trust, death or incapacity of trustees, there had been reduction in the

number of trustees, and when four (4) surviving trustees of the Board of Trustees namely Swatmananda Maharaj, Swami Suddhananda Maharaj,

Fakir Garai and Swetketu Mukhopadhyaya included eight (8) persons as new trustees, raising the number of trustees to twelve (12). A new deed was

thus, registered on 20.5.1981, as regards the appointment of such new trustees incorporating therein the terms and conditions of the deed of trust after

renaming the trust as ""Shri Shrimat Krishnananda Trust"".

After induction of new trustees on the strength of appointment of new trustees, by deed dated 20.05.1981, four (4) trustees suffered death, and four

(4) became disinterested, resulting in their removal from the board of trust. Similarly, another trustee having expressed his inability to work was also

expelled from the board of trust. Due to the reduction of number of trustees Swami Swatmananda Maharaj, being the President of Ashram executed

a deed of appointment of trustees, dated 30.09.1997, appointing plaintiffs and proforma defendants, as trustees in the board of trustees, incorporating

therein terms and conditions, as contemplated in the original deed of creator.

Swami Swatmananda Maharaj with the passage of time left this world on 19.01.1999, putting plaintiffs, proforma defendants with other trustees as the

trustees for managing the trust property.

The contention of the appellants/plaintiffs, revealed from Para-10 & 11 of the plaint, is that principal defendant nos. 1 to 3 taking support of remaining

defendant nos. 4 to 8 tried to grab the trust property, and started collecting funds for the Ashram, and spending the income of trust property in

exercise of their sweet will. Defendants thus held feasts inside the Ashram premises with various persons allowing them to reside inside the Ashram

during the night converting the Ashram premises into a place for amusement making patent contravention of desire and intention of the creator of

trust.

The proforma defendants were even forced to leave the Ashram. For such unbecoming conduct and activities of defendants. A show cause notice

was given to defendant nos. 1 to 3 on 05.04.1999. The defendant nos. 1 to 3 failed to respond to the show cause notice, and in the meeting dated

25.04.1999, defendant nos. 1 to 3 were removed from the board of trustees for their deliberate acts causing violation of the terms and conditions

contained in the deed dated 30.09.1997.

The principal defendant nos. 1 to 3 even after being removed from the board of trustees, they kept the keys of Ashram room retained in their custody.

The defendants were alleged to have prevented the disciples/followers/saints from entering into the Ashram, and obtaining blessings from Ashram

after offering puja in the Ashram. On such allegations, the suit giving rise to the instant second appeal came to be instituted for a declaration and

injunction against the defendants/ respondents.

Defendants contested the suit filing written statement denying all material averments contained in the plaint, and specifically challenging that the suit

was not maintainable by provisions of Indian Trusts Act. It was contended in the written statement that the trust created originally by the creator,

namely Swami Krishnananda Maharaj, had been grossly changed including the change of name of the trust, and its composition, structure, formation

with the creation of new deeds during lifetime of Swami Swatmananda Maharaj, who was an impostor to the trust property, and by reason of such

change occasioned in the subsequent deeds/documents, the pious intention of the original creator could not be served, and as such the subsequent

documents/deeds prepared after demise of Krishnanandaji Maharaj, should be treated as illegal, null and void, and not binding upon the defendants.

Upon taking such defence, the defendants sought for dismissal of the suit.

On the basis of pleadings of the parties, the Trial Court framed as many as twelve (12) issues, including six (6) additional issues framed as per

direction of the First Lower Appellate Court. The suit was first dismissed by the Trial Court. The plaintiffs challenged the dismissal of suit by

preferring an appeal, when the First Lower Appellate Court remanded the suit for fresh trial with a direction to frame six (6) additional issues

mentioned hereinabove. The issues thus framed may be mentioned as hereunder.

Is the suit maintainable in its present form?

Is the suit barred by the provisions of Indian Trust Act?

Have the plaintiffs any cause of action form filing the instant suit?

Whether the deeds dated 20.05.1981 and 29.09.1997 are invalid?

Are the plaintiffs entitled to get decree as prayed for?

To what other relief or reliefs, if any, are the plaintiffs entitled?

Whether the plaintiff Nos. 3 and 5 are the trustees of the trust properties or not?

Whether the defendants have their any right as member of the trustee or not?

Whether on the strength of deed of trust as referred in the plaint, the plaintiff and any other person have their right as member of the trust to look

after the trust property?

10.Whether the defendants have their any right as member of trust property as per the trust deed?

Whether the defendants have their any right to look after the trust properties on the strength of trust deed?

12.On the strength of the trust deeds who are the present trustees to run the trust property and other materials of the trust property? The Trial Court

after the suit was remanded back for fresh decision, decreed the suit granting declaration, as proposed, after restraining the defendants, shown

hereinabove, from disturbing and/or interfering with the affairs of the trust property.

The appellants/plaintiffs preferred the First Appeal before the First Lower Appellate Court to challenge the said judgment and decree passed by the

Trial Court, when learned First Lower Appellate Court dismissed the appeal reversing the judgment passed by the Trial Court.

Being aggrieved by and dissatisfied with the judgment of reversal, passed by First Lower Appellate Court, this Second Appeal came to be preferred

by the appellants/plaintiffs.

At the time of admission of second appeal, the Division Bench framed the following substantial questions of law to be heard at the time of disposal of

the appeal.

XV. For the learned Appellate Court below failed to appreciate that clause 9 of the said Parent Deed dated February 28, 1958 provided with wide

and ample power to the trustees administering and managing the affairs of the said Trust which could include the power to appoint any new person as

trustee and expel any existing trustee as well.

XVI. For that learned First Appellate Court erred in law in observing that in the event of expulsion of existing trustee is sought for, recourse provided

under the provisions laid down in Section 34 of the Indian Trusts Act, 1882 ought to have been availed inasmuch as the same will resulting in

curtailment of the power of the trustees provided in the said Trust Deed dated February 28, 1958, and specifically in Clause 9 thereof.

The simpliciter case of appellants/plaintiffs is that they sought for a declaration from Court for their right to the office of trusteeship getting infringed,

and or clouded at the instance of respondents/defendants, who allegedly did some acts contravening the avowed object of trust together with the

intention of the settlor of trust, and accordingly the appellants/plaintiffs had to seek justice from Court by filing a suit for declaration and injunction.

The appellants/plaintiffs put much emphasis upon the two Clauses mentioned in Clause-'6' and Clause-'9' of the trust deed, dated 28.02.1958 (marked

as Exhibit-3), in order to establish that appellants/plaintiffs performed their duties as trustees for the protection, preservation and maintenance of the

trust property after respecting to the holy intention of the settlor of trust.

Adverting to Clause-'6' and Clause-'9' of such trust deed, learned advocate for the appellants submitted that the Clause-'6' of the original trust deed

having stipulated that on the death, resignation and incapacity of any trustee, the majority trustee would appoint/induct new trustee. The surviving

trustees after the demise of creator of original deed in terms of the Clause, enumerated in Clause-'9' of such deed, performed all such acts bearing in

mind the avowed object of the trust property for due management and administration of the trust property. It was thus submitted that conjoint reading

of both the Clauses, shown in Clause-'6' and Clause-'9', would clearly reveal that it was well within the ambit and power of majority trustees to induct

new trustee including removal and expulsion of any of the trustee. The expulsion or removal of the trustee for making alleged contravention of the

rules pertaining to the management and administration of the trust property, according to appellants, was perceived to be embedded in Clause-'9', as

incorporated in the trust deed referred above.

It was further submitted that Swami Krishnananda Maharaj, the original settlor of the trust property, when removed two (2) of the trustees during his

life time without their death, resignation or incapacity in terms of stipulation mentioned in Clause-'6', the previous conduct of the settlor should be

treated to be best guide to unfold true intention of settlor behind the creation of such trust, and further to remove any ambiguity contained in the words

used in such Clauses of trust deed; the removal or expulsion of any of the trustees for alleged contravention of performance of trustee should be

perceived to have been done by the original settlor himself during his lifetime exercising his authority to Clause-'9' of Parent Deed. The subsequent

deeds, namely deed dated 20.05.1981 (Exhibit-1) and deed dated 30.09.1997 (Exhibit-1a), prepared after the demise of the original creator of such

trust deed, according to appellants, which are contended to be not binding upon the defendants, were actually the deeds in new appointment of trustee

with incorporation of some rules regarding governance and supervision of the trust property, which the plaintiffs/appellants being the majority trustees

could easily do in exercise of their authority, provided in Clause-9 of the original trust deed of 1958 (Exhibit-3), learned advocate for appellant argued.

The subsequent deeds created after 1958, as referred above, according to appellants, could not be regarded as new trust deed, in place of the original

trust deed created by Sri Swami Krishnananda Maharaj on 23rd February, 1958. Appellants further contended that the plaintiffs and some of proforma

respondents being appointed by the remaining trustees in exercise of the power bestowed upon the surviving trustees by dint of Clause-'9' of the

original trust deed of 1958, the plaintiffs simply wanted to weed out the mischievous trustees for their alleged contravention of performance attempting

to frustrate the object and the aim of the trust as well as polluting the whole ambience of the Ashram.

Per contra, learned advocate for respondent submitted in reply that the Clauses referred above by the appellant were independent of each other on the

ground that Clause-'6' dealt with appointment/replacement of the trustees subject to three (3) eventualities being reached by reason of death,

resignation and incapacity, while Clause-'9' dealt with power of the trustees to frame such rules, as would be necessary for due discharge of duties of

trust properties including the management of Ashram's property most effectively and peacefully. According to respondent, that the true intention,

which is paramount consideration for our present purpose, of the settlor/creator of the trust behind insertion of Clause-'9', was to authorise the trustees

for framing rules, by-laws, norms for the proper management of the Ashram, and as such the trustees could not be expected to be empowered to do

anything in a manner, which is inconsistent with the real intention of the creator of the trust.

It was further contended that for causing change of name of trust, created by a subsequent deed dated 20.05.1981 (Exhibit-1) in place of the original

trust deed, dated 28.02.1958 (Exhinit-3), and further for altering mode of composition, formation, or the structure of the trustees, which was not even

contemplated by the creator of the trust himself, the subsequent deeds prepared after the demise of the Srimat Swami Krishnananda Maharaj should

be treated to be invalid, illegal and not binding also.

Clause-'6' according to respondents would only stand for replacement of the trustees subject to reaching contingency, as specially set out therein.

Argument was focused by the respondents contending that by the subsequent deeds pertaining to the appointment of the trustees, held on 20.05.1981

and 30.09.1997 raising the number of trustees from 7 to 12 and subsequently to 14, were absolutely illegal keeping in view the specific Clause-'6' of

original trust deed guiding the appointment of the trustees to fill in the vacancy already occurred. Thus referring the words used in Clause-'6' of such

original trust deed, emphasise was supplied by the respondent that real intention, created by the parent trust deed, was to keep the formation of the

trust restricted to the number of trustees, which was obviously done by the creator himself by his nomination of 7 trustees in the original trust deed of

1958. The Clause-'9' of the original trust deed not being subservient to Clause-'6' of such deed, the authority provided by the settlor to the remaining

trustees was purely for setting up new rules, by-laws and norms for the management of trust property, but the same cannot be taken to supersede the

Clause dealing with replacement/substitution of the trustees, as mentioned in Clause '6' of the original trust deed.

The subsequent deeds pertaining to the appointment of new trustees in the trust board of the trust properties, as claimed by the plaintiffs together with

some of the proforma respondent being unilaterally prepared by Swami Swatmananda Maharaj, to the exclusion of other trustees, the appointment of

the plaintiffs, as against their claim of trusteeship in the trust was a clear violation of the holy intention and honest desire of the original settlor of trust,

created in 1958, on the simple ground that subsequent deeds of appointment of trustees completely disregarded the majority decision of remaining

trustees, other than Swami Swatmananda Maharaj in the matter of induction of new trustee.

Upon the backdrop of such rival submission of the parties, the pertinent point to be addressed by the Court is whether the Clause-'9' of parent deed of

1958 provided wide and ample power to the trustees to appoint new person, as trustee, or to expel the existing trustees, for administering and

managing the affairs of trust property.

Upon perusal of the original trust deed dated 28th February, 1958 (Exhibit-

3), it appears that Shrimat Swami Krishnananda Maharaj established an Ashram known as Shri Sri Ramkrishna Ashram in Mouza Chargali within

P.S. Hura during his life time being a follower of Shri Shri Saradama, when many persons of adjoining locality including Purulia became

followers/disciples of Swami Krishnananda Maharaj. Subsequently Swami Krishnananda Maharaj gathered some properties after being gifted by

some of his disciples. The income of such properties being usufruct, Swami Krishnanandaji Maharaj used to spend the same for the maintenance of

Ashram. Ultimately, on 28th February, 1958, Swami Krishnanandaji divested himself from Ashram dedicating all the properties of Ashram in favour of

a trust giving name as Rakab Shri Shri Ramkrishna Trust @ Srimat Krishnananda Trust wherein Shrimat Krishnananda Maharaj being settlor/creator

of such trust nominated as many as seven (7) trustees therein.

The original trust deed contained sufficient revelation that so long the creator of the trust would remain alive, other trustees would act as per advice of

the creator, but after the death of the creator, Sannyasi (Monks) will have their predominance over the opinion of other trustees, but ordinarily the

Monks trustees will act in consultation with other trustees. There was provisions in such trust deed that in case of death, or incapacity, resignation of

any of the trustees, there could be induction of new trustee by remaining trustees.

After the demise of Swami Krishnananda Maharaj i.e. the original creator of trust, by a resolution dated 13.12.1964, Srimat Swatmananda Maharaj

was inducted as trustees with another in the board of trustees by surviving trustees, and Swami Swatamananda Maharaj was elected subsequently as

President/Adhyaksh of such trust property.

With the passage of time and also being prompted by the necessity of time for maintaining the affairs of Ashram's property, and also for proper

management and administration of the trust property, Swami Swatamananda Maharaj appointed new trustees by a deed dated 20.05.1981, raising the

number of trustees from 7 to 12, and subsequently by another deed of appointment of trustees, dated 30.09.1997, further inducted new trustees raising

the number of trustees to 14.

The avowed object behind the creation of the trust was vividly shown in Clause-'1' of original deed of trust of 1958, wherefrom it would be evident

that the prime purpose was to achieve the aim and object of such Shri Shri Ramkrishna Ashram after ensuing well-being by causing development of

Shri Shri Ramkrishna Ashram by the trustees so appointed. Upon true construction of the words used in the original trust deed, as regards the object

of such trust, mentioned in Clause-'1' together with its mode of user, the First Lower Appellate Court bearing in mind the religious performance

undertaken in such Ashram by creator of such trust, reached to a definite finding that it was a religious, charitable trust, though none of the parties to

this appeal in so many words asserted the same in their respective pleadings.

The original creator of Parent Deed by reason of incorporation of Clause-'6' kept his right reserved during his life time as regards the

replacement/substitution of trustee in the event of death or resignation being occurred to any of the trustees, and after the death of the creator or for

his incapacity, the remaining trustees (surviving trustees) could only appoint the new trustee in respect of the vacancies so occurred. The surviving

trustees were thus left with the authority to appoint new trustee upon reaching three (3) eventualities like death, resignation or incapacity of the

trustees only after the demise of the creator of such deed. Alternatively it may be put in this way that the power to appoint new trustee by the

surviving trustees is only exercisable on three (3) contingencies, as already enumerated in Clause-6, and such power is exercisable by the surviving

trustees jointly by a majority vote.

Clause-'9' of the original trust deed empowered the trustees to frame rules, by-laws, regulation and norms for the purpose of proper management and

administration of Ashram's property, pursuant to the avowed object of the trust. The rules, norms, by-laws even if framed, should be consistent with

real intention of settlor of such parent deed.

Substitution or replacement or new induction/appointment of trustee though conceivable from the express words employed in Clause-'6', leaving

removal or expulsion of existing trustee conspicuously unconceivable, but the same can be easily perceived from Clause-'9' of such deed, otherwise

original creator could not have removed two trustees during his life time without meeting three contingencies, as enumerated in Clause-'6'. Previous

conduct of original creator in the given facts and circumstances of the case should be taken to be best guide to reveal the true intention of settlor of

such deed in the matter of expulsion of existing trustee, and also to remove any ambiguity or obscurity in the matter of construction of such deed.

The essence of trust deed would be lost, if it is devoid of any provision for removal of any of the trustees for alleged misconduct and attempting to

frustrate the Trust property. When respondents admitted that parent deed to be a trust one, raising no say in their written statement as regards

removal of two trustees by the creator during his life time, it would stand to reasons that respondents/defendants had nothing to controvert the

expulsion of two trustees by creator of trust. Inevitably then the irresistible conclusion regarding expulsion of existing trustee, though not covered by

Clause-' 6', but it is perceived to covered by Clause-' 9' of such deed providing ample power, authority to trustees to expel existing trustee, what would

be necessary for management and the administration of trust property bearing in mind the pious intention of original settlor of such deed.

Though the creator himself nominated 7 trustees initially in the trust deed of 1958, and when there was reflection in Clause-6 that in the event of death

of original creator of trust deed, the surviving trustees would induct new trustees by majority decision on vote, but it would not lead to invariable

proposition that the real intention of the original settlor was always for restricting the number of trustees to 7 (seven), thus putting an upper cap in the

matter of number of trustees as regards composition of trust, because a trust is identified by its object, dedication of property ascertainable from the

terms employed in a document mode of user together with the number of beneficiaries, not by number of trustees and its name, as contended.

Argument thus advanced by respondents that the real intention of the settlor was to restrict the number of the trustees to seven (7) would be without

any significance.

Upon perusal of Exhibit-1, being deed of appointment of trustees prepared on 20.05.1981 during the tenure of Swami Swatmananda Maharaj along

with Swami Suddhananda, Fakir Gorai, Swetketu Mukhopadhyaya inducting a good number of trustees raising thereby the number of the trustees from

7 to 12, and subsequently during the presidentship of Swami Swatmananda Maharaj by another deed dated 30.09.1997 enhancing the number of

Trustees to 14, it appears that rules were set out therein, found in Clause-'14' of such deeds ( 20.05.1981) aiming to alter the mode of appointment of

trustees by retaining the object of such trust providing authority of appointment either to the remaining trustees or in alternative to President Maharaj,

namely Swami Swatmananda.

With incorporation of Clause-'15' in such deed of appointment of trustee (20.05.1981), a new rule came to be put in for the removal, or expulsion of

any of the trustees, for causing contravention of rules of the trust board, by the President of such trustees, but without detailing out the rules to be

followed in seeking expulsion or removal any of the existing trustees. By incorporating Rule 14 and 15 in deed dated 20.05.1981 more and more power

was vested to the President Maharaj, as regards the appointment of new trustee, and removal/expulsion of any of the existing trustee. Though First

Lower Appellate Court observed that original deed of trust did not make any provision for expulsion of any existing trustee, but it kept provision for

appointment of a new trustee in case of resignation, death and incapacity, but such observation will not stand to reasons keeping in view the previous

conduct of the creator of the trust, who during his life time himself, expelled two of the trustees without meeting their any of the contingencies, as

specially set out in Clause-'6' of such deed.

Contention was raised by respondents stressing much upon Rule 14 and 15 of deed dated 20.05.1981 that not only there was alteration in the mode of

appointment of new trustee, but the view of remaining trustees in the matter of induction of new trustee was given a complete goby making Swami

Swatmananda Maharaj omnipotent, but significant aspect to be kept in mind that an option came to be inserted in Clause-'14' of deed dated 20.05.1981

providing authority to President or to remaining trustees, while inducting new trustee, and this position was not challenged by bringing an independent

action by anybody adversely affected thereby, and further the deed dated 20.05.1981 (Exhibit-1) virtually paved the way for appointment of new

trustees, both to plaintiffs/appellants and respondents/defendants also by a subsequent deed of appoint of trustees, dated 30.09.1997 (Exhibit-1a). This

is not the case where defendants, who are said to have been expelled upon taking a resolution for their unbecoming conduct and further attempting to

frustrate the trust, had challenged their removal from their trusteeship for the illegality committed by plaintiffs/appellants. When respondents accepted

their appointment to their office of trusteeship by concerned deed, referred above, and discharged their performance for some considerable period of

time, without challenging the same, which might not be conducive to the welfare of trust property, as per alleged desire of appellants/plaintiffs,

respondents should not be allowed to take a plea challenging their own appointment, as regards their officer of trusteeship.

Therefore, the power of expulsion/removal of existing trustee is perceived to be embedded in Clause-'9' of original trust deed, which is supposed to

supplement Cause-'6', keeping in mind the previous conduct of settlor, as already done by the creator himself in the instant case, besides setting up

new rules, by- laws, norms for due administration and management of Ashram's property, created by trust. Expulsion of mischievous trust would be

reasonably relatable to the due administration and management of Ashram's property.

This court is not impressed to accept that there had been mode of alteration, while inducting new trustees including the structure of the trust, what was

actually contemplated by the original settlor by dint of Clause-'6' of original trust deed, because presence of optional Clause as regards conferment of

authority to President of Ashram, or alternatively to other trustees to appoint new trustee, shown in Rule 14 of deed of appointment of trustee dated

20.05.1981 (Exhibit1), would not itself invalidate the appointment of new trustees. There was no apparent conflict of Rule 14 and 15 of deed dated

20.05.1981 with the Clause- '6' read with Clause-'9' of parent trust deed, in absence of avowed object of such trust becoming frustrated. Providing

more authority to President Maharaj of Ashram alternatively in the matter of induction of new trustee and making less significant to other trustees

would be without any relevance.

Since the name of the trust created by the original settlor was known and published as Rakab Shri Shri Ramkrishna Trust @ Shri Srimat Krishnananda

Trust, renaming of trust as Srimat Krishnananda Maharaj Trust would be insignificant, though contended by the respondents, on the ground that the

settlor of the original trust deed preferred to put the name of the trust as Shri Shri Ramkrishna Trust @ Shri Srimat Krishnananda Trust. When there

was already in existence as regards name of such trust as ""Shri Shrimat Krishnanda Trust"", besides its another name as ""Shri Shri Ramkrishna Trust"",

renaming of trust would not matter much, and accordingly cannot be allowed to be contended to be in sheer violation of pious intention of the original

settlor of such trust deed.

As argued by the appellants that with the raising of number of trustees together with change of name of the trust, there had been no substantial loss or

damage to the trust property, since it was done to give effect to the pious intention of the creator bearing in mind the avowed object of trust by dint of

Clause-'9' of original trust deed, thereby supplementing the Clause-'6' of such deed, such stand of appellants needs to be duly appreciated in the

background of past conduct of creator with reference to trust created together with the defects and illegality as focused by respondent. But merely

upon noticing Rule 14 and 15 of Exhibit-1, inserted with the necessity of time, no illegality could be attributable as regards mode of appointment of

trustees, and accordingly such argument, as advanced by the appellants, deserve acceptance. The counter argument of respondents as regards the

power of expulsion/removal of existing trustee cannot be supplemented by Clause-'9' of such Parent Deed, when there was already in existence of an

independent Clause-'6' dealing with appointment of new trustee, fails to stand upon in the given set of facts being deducible from Clause-'9' of parent

deed. The propriety of claim of plaintiffs, as regards their trusteeship and some of the proforma defendant being thus flown from deed dated

20.05.1981 (Exhibit-1) and subsequently from deed dated 30.09.1997 (Exhibit-1a), same cannot be looked with doubt.

The observation of learned First Lower Appellate Court that parent deed contained no provision for removal of existing trustee, though it contained

express provision for new induction of trustee, in any case is not good enough to go undisturbed, because learned First Lower Appellate Court omitted

to keep in mind the past conduct of creator of trust deed, who himself removed two trustees during his life time without making adherence to Clause-

'6' of parent deed, but obviously by taking recourse to Clause-'9' of such deed, otherwise the trust would have lost its entity/essentials to exist

anymore. The question is thus answered in affirmative.

As regards second substantial question of law framed with regard to the observation of the First Appellate Court that in the event of expulsion of

existing trustee is sought for, recourse provided under the provisions laid down in Section 34 of the Indian Trusts Act, 1882 ought to have been availed

of inasmuch as the same will result in curtailment of the power of the trustees provided in the trust deed dated February 28, 1958, as specifically

shown in Clause-'9' thereof, learned advocate for the appellants argued that such observation of the First Appellate Court suffered from illegality,

since the provisions of Indian Trusts Act would be applicable in case of private trust. It was thus argued by the appellants that when the trust property

was held to be religious and charitable one, the same should have been construed to be public trust, because of presence of an element of undefined

number of public in the mode of user of trust property, which was the avowed object of trust. The observation of the Appellate Court was thus

attacked challenging the applicability of Section 34 of Indian Trusts Act, 1882.

Learned advocate for the respondents in reply submitted that the observation of the First Lower Appellate Court with regard to invocation of Section

34 of the Indian Trusts Act, instead of approaching the Civil Court, did not suffer from illegality, as contended by the appellants, since the First Lower

Appellate Court ultimately did not pass any decree based on such observation as to the maintainability of the suit, so instituted.

Incidentally the First Lower Appellate Court further observed that the provisions of Section 92 C.P.C. would not be applicable in the instant case,

though Section 34 of the Indian Trusts Act was observed to be applicable over the facts and circumstances of this case. The question thus begging

answer from the Court is whether Section 34 of the Indian Trusts Act would be applicable over the facts and circumstances of the case, restricting

Section 92 C.P.C. to be inoperative over here, or neither Section 34 of Indian Trusts Act, nor Section 92 C.P.C. would be applicable over the instant

facts and circumstances of the case.

Both the parties to this second appeal were ad idem to the question that a trust was created in 1958 by Shri Srimat Krishnananda Maharaj nominating

as many as 7 trustees there, wherein dedication of the trust property was basically made for achieving and/or aiming the object of Shri Shri

Ramkrishna Mission by spreading religious ideology of such Ashram, and also by religious performance of Ramkrishna Mission, so that welfare and

well-being of Ashram's property could be smoothly achieved.

When respondents admitted the creation of the trust for the religious performance of Shri Shri Ramkrishna Mission, parties to this appeal are supposed

to be bound by the terms incorporated in the trust deed, while fulfilling the wish and pious intention of original creator of such trust deed of 1958. The

First Lower Appellate Court in the absence of any specific indication in the pleadings of either of the parties to the suit, upon construction of the

Clauses originally incorporated in the trust deed, held the trust property to be religious and charitable in nature. By reason of observation of such

Appellate court holding the trust property to be religious, charitable in nature, the respondents having felt aggrieved with such observation did not file

any cross-appeal to disturb such findings of the First Lower Appellate Court, even in absence of any specific averment contained in written statement

disclosing the nature of trust property. Respondent thus virtually accepted the observation of the First Lower Appellate Court with regard to the

religious and charitable nature of trust property, which was initially created by settlor of the trust, while making dedication of property in favour of a

trust created by himself in 1958.

Learned advocate for the appellants argued adverting to preamble of Indian Trusts Act, 1882 that it would apply to private trust and trustees. Section

1 of such Act lays down that nothing herein contained ""applies to public or private religious or charitable endowments"". Thus, it was proposed by the

appellant that all charitable trust, therefore, are excluded from the ambit and operation of the Indian Trusts Act.

Reliance was placed by the appellants on such issue on a decision reported in AIR 1982 Delhi 453 delivered in the case of Smt. Shanti Devi and

another vs. State and others, wherein it was propounded that all charitable trusts were excluded from the operation of the Indian Trusts Act. It was

further decided in such decision that all charitable trusts are public trust. Public trust and charitable trusts are synonymous expressions.

Respondents had nothing to challenge such decision besides contending the second substantial question of law being framed in this case to be

superfluous one.

As has already discussed that the respondents never disputed with the observation of the First Lower Appellate Court holding it to be religious and

charitable in nature, wherein presence of public element was supposed to be there, evidenced from the mode of user of the trust property, so far

dedicated in this case by settlor. Public trust and charitable trust are thus notably of equivalent descriptions. There is, however, difference between a

public trust and the private trust. In public trust, beneficiaries are uncertain, whereas in private trust beneficiaries are ascertained or at least can be

made ascertainable. The most fundamental distinction between the private and public trust depends upon the character of the person, for whose

benefit they are created. In private trust, defined and ascertained individuals are likely to be affected, while in public trust, the beneficial interest of

dedicated property must be vested in an uncertain and fluctuating body of persons, either the public or at large.

Reliance was further placed by learned advocate for the appellants on a decision reported in AIR 1987 Punjab and Haryana 183, delivered in the case

of Suraj Bhan (died) and others vs. Bodha Nand and others, that whether certain property were or were not dedicated to a public trust of religious or

charitable nature is a question of fact, and can be determined by reference to the terms of the document creating the trust, and when there was no

such document, by user of the property, and other surrounding circumstances.

The proposition of law, as propounded in such decision, remained uncontroverted by the respondent. In the case at hand not only there was a written

document creating the trust, but from the surrounding circumstances including the mode of user of the trust property, it would be clear that the trust

was created for the religious purpose being religious and charitable in nature. The avowed object of such trust being to spread ideology of Ramkrishna

Mission and to achieve object of such Ramkrishna Ashram, after doing well-being of such Ashram's property, to be evidenced from the religious

performance of such Ashram, together with the maintenance of the Ashram from the Ashram's properties (trust property), it would necessarily come

to an inevitable conclusion that instant trust, created by settlor in 1958 was basically for religious and charitable performance being religious and

charitable in nature, and that being the position, it would automatically come within the meaning of public trust, and thus would restrict Section 34 of

Indian Trusts Act to come over here. There is thus strong force in the argument advanced by the learned advocate for the appellants requiring due

appreciation.

Another decision relied upon by the appellants reported in AIR 1957 SC 133 delivered in the case of Deoki Nandas vs. Murlidha rbeing relatable to

the income/usufruct of the trust property to have been utilised for the maintenance and administration of trust would also suggest that mode of user of

the income of trust property was another feature, wherefrom nature of dedication of settlor, or the pious intention of creator could be made

ascertainable. There is no dispute that usufruct of trust property could be made use of by the trustees in a manner inconsistent with the terms and

Clauses of the original trust deed, i.e. income of the trust properties can only be spent for the welfare of trust property.

The income of the trust property being liable to be spent for the welfare of trust property together with the religious performance of trust for achieving

the object of trust would thus essentially suggest that the settlor actually created a religious and charitable trust, which was rightly held by the First

Lower Appellate Court.

Regarding the scope and applicability of Section 92 C.P.C over here reliance may be profitably made to a decision reported in AIR 1986 Allahabad 75

delivered in the case of Kabul Singh and another vs. Ram Singh and others, as referred by appellants, wherein it was held that if on an analysis of the

averments contained in the plaint, it would transpire that the primary object behind the suit was the vindication of individual, or personal right of the

persons, or plaintiffs themselves, an action under Section 92 C.P.C. would not lie. It was further held even if all the other ingredients of a suit under

Section 92 are made out in a plaint, if it was clear that the plaintiffs were not suing to vindicate the right of the public, but were seeking a declaration

of their individual or personal rights of any other person or person in whom, they are interested, then the suit would be outside the scope of Section 92

C.P.C.

Learned advocate for the respondents candidly did not challenge the finding of the First Lower Appellate Court restricting the applicability of Section

92 C.P.C. over the instant facts and circumstances of this case. The suit giving rise to this appeal came to be instituted in 1999 seeking a declaration

that the plaintiffs/the proforma defendants are the trustees, and for permanent injunction restraining the principal defendant from interfering with the

management of trust properties, as described in the schedule to the plaint, for the alleged disturbance and/or interference of the principal defendants,

who were stated to have been expelled from their respective trusteeship by taking a resolution for the purpose. The primary object of instant suit was

to seek remedy against infringement of their individual right to the office of their respective trusteeship, after vindicating their private rights, and

essentially not suing to vindicate the right of public. Therefore, Section 92 C.P.C. was rightly held to be inapplicable.

There was thus no obstacle to the institution of the present suit, while seeking declaration from the Court. The pertinent question is if the suit being

held to be maintainable, as framed, can there be declaration as prayed for on the strength of deed of appointment of the trustees, prepared after the

demise of original creator of such trustee, i.e. during tenure of Swami Swatmananda Maharaj by dint of Exhibit-1 and Exhibit-1(a) (deed of

appointment of trustee dated 20.05.1981) and (deed of appointment of trustee dated 30.09.1997).

As has already discussed that Clause-'6' of original trust deed (Parent Deed) cannot be read in an isolated manner and both the Clauses i.e. Clause-'6'

and Clause'9' have to be read together to ascertain the real pious intention of settlor of trust, while securing expulsion of existing trust for his alleged

misconduct attempting to frustrate the object of trust, bearing in mind the past event of creator facing similar event after the trust was created, so in all

fairness Clause-'6' of parent deed should be construed to be circumscribed by Clause-'9', and cannot be deemed to be antithesis of Clause-'6'. Their

appointment being consistent with the pious intention of the original settlor as set out in Clause-'6' of parent deed; their appointment cannot be made

illegal giving an isolated look at Clause-'9' of such deed, because Clause-'6' is perceived to be qualified by Clause-'9', while aiming for expulsion of

existing trust. Therefore, framing of suit being lawful and propriety of claim behind seeking declaration not being tainted with illegality, proposed

declaration should not have been repudiated.

Learned advocate for the respondents contended that Clause-'6' of parent deed not being circumscribed Clause-'9' of such deed, expulsion of existing

trustee was not covered and accordingly second substantial question of law framed in the instant case was superfluous, and not framed properly

according to the mandate of Section 100(4) of C.P.C., and thus submitted that the only option left open to him was to raise an objection stating that the

question of law, so framed, would not really arise in this case.

Regarding the scope and ambit of respondents to challenge in second appeal with respect to substantial question of law framed in connection with

second appeal, learned advocate for the appellants referred two decisions namely Ranjit Kumar Karmakar @ Dulal Karmakar vs. Hari Shankar Das

reported in (2019) 5 SCC 477, and Surant Singh (Dead) vs. Siri Bhagwan and Others reported in (2018) 4 SCC 56.2 The point thus referred by the

respondent is a settled proposition of law requiring no elaborate discussion. Section 100(5) C.P.C. in express terms provides that the second appeal

can be held only on the substantial question(s) of law framed by the High Court under Section 100(4) of the Code, and on the strength of proviso to

Sub-Section 5 of Section 100 C.P.C., respondent is supposed to raise the plea at the time of hearing that the questions framed either do not arise in the

case, or the questions framed are not the substantial questions of law. Being emboldened by such proposition of law, learned advocate for the

respondent sincerely made his submission contending that second substantial question of law framed, was nothing but superfluous.

The discussion hereinabove made it clear that neither Section 34 of Trusts Act, 1882, nor Section 92 C.P.C. could be made applicable over the facts

and circumstances of the case. Conjoint reading of Clause-'6' together with Clsuse-'9' of the parent trust deed would leave not ambiguity to secure

expulsion of existing trustee for his alleged misconduct, what was actually contemplated by the creator himself, proved from his past conduct. The

Clause-'6', though being independent, so far as induction of new trustee is concerned for the eventualities enumerated therein, but in all purposes

Clause-'6' should be reasonably treated to be circumscribed by Clause-'9', while going for expulsion of existing trustee for any unforeseen or un-

conceived circumstances for the continuity of trust. If any other interpretation is imported in the instant case, providing something uncommon, as

contended by respondents, what even could not be contemplated by the creator himself at the time of making dedication of his property to trust, the

same will be contrary to the wish and pious intention of the original settlor of trust deed of 1958. Nothing is conceivable inconsistent with the wish of

settlor of trust ascertainable from the terms employed in trust. The Clause-'9' appear to be all pervasive with highest amplitude, as Clause-'9' may be

taken to task, as and when necessary, for the safe management and due administration of Ashram's property by laying down norms and rules; and

removal or expulsion of existing trust for alleged misconduct, as corollary of circumstances, is perceivable being relatable proximately to the

management and administration of trust. So expulsion or removal of existing trustee is conceivable upon a conjoint reading of Clause-'6' and Clause-'9'

of parent deed together.

The dismissal of appeal by First Lower Appellate Court thus in exercise of his appellate authority was not appropriate upon smelling the alleged

spurious element contained in the plaintiff's appointment as new trustees on the strength of deed of appointment of trustees dated 20.05.1981 (Exhibit-

1) and dated 03.09.1997 (Exhibit-1a). The dismissal of first appeal accordingly is not sustainable.

Although no straight-jacket formula has been evolved for construction of a document, like the instant trust deed, the consistent view of the Apex Court

is that while interpreting an instrument to remove any ambiguity in the document in context with the pious intention of settlor, the court has to very

carefully examine the document as a whole, look into the substance thereof, keeping in view the treatment given by the settlor previously on the same

issue during his lifetime. The intention of settlor in the given set of circumstances would appear not only from the express language employed in the

instrument, but by necessary implication, while reading Clause-'6' and Cluase-'9' of parent trust deed of 1958 together, in the absence of any

prohibition contained therein making curtailment of power of trustee. Neither nomenclature of trust property, nor the composition of trust in the given

circumstances would be conclusive.

Upon hearing the rival submission of both sides, and also after perusal of the written notes of argument, furnished by each of the parties to this appeal,

the court is of the view that the removal/expulsion of any of the trustees is within the meaning of Clause-'9' read with Clause-'6' of original trust deed,

and by inserting Clause-'9' in the parent deed, the settlor intended to put unfettered power without any restriction to expel any of the trustees for his

alleged misconduct attempting to frustrate the object of trust. The illegality of removal of principal defendants from their respective right to the

trusteeship not being challenged by an independent action, the proposed declaration of appellants/plaintiffs should not be refused.

The instant appeal succeeds and accordingly allowed.

Appellants/plaintiffs do get a decree of declaration that the appellants/plaintiffs numbers 1, 2, 4, 6 to 10 and the proforma defendant numbers 9, 10, 12

and 13 are the trustees of the trust board of ""Shri Shrimat Krishnanda Trust"" for looking after the management of the Ashram as well as the trust

properties of the said Ashram.

Principal respondents/defendants numbers 1 to 8 are hereby permanently restrained from interfering with the management of the Ashram as well as

trust properties of said Ashram as described in the schedule to the plaint.

Office is directed to send down lower court's record along with copy of the judgment to the learned Trial Court for information.

The copy of the judgment may also be forwarded by the department to the learned First Lower Appellate Court for necessary information.

With this observation and direction, the second appeal stands disposed of. Urgent certified copy of this judgment and order, if applied for, be given to

the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.