Mahanth Ramsaroop Das vs Rameshwar Das and Another

Agarwala, J.—Opposite party 1 made an application to the District Judge of Monghyr, u/s 3, Charitable and Religious Trusts Act, 1920, alleging that he was the lawful successor of the last mahanth of the Salouna asthal and that the present, petitioner was not the lawful mahanth of the asthal, although he claimed to be suck and was in possession of the properties of the asthal. After the arguments had been heard on this petition, opposite party 2 made an application to the District Judge, under Order 1, Rule 10, Civil P.C., alleging that he was a regular worshipper at the asthal and praying to be added as a party to the application of opposite party 1.

Both these applications have been granted by the learned District Judge. The petitioner before us challenges the validity of the order that has been passed on the ground of want of jurisdiction. It is contended that the Act applies only to public trusts: that there is no evidence that the properties are the properties of a public trust; that the application u/s 3 is maintainable only by a person having an interest in the trust; that neither of the opposite parties has such an interest; and that the application is maintainable only against an admitted trustee and not against a person whose status as a trustee is challenged. It was open to the petitioner to ask for a stay of the application for accounts pending a decision of the nature of the trust in a regular suit.

Sub-section (3) of Section 5 of the Act provides as follows:

If any person appears at the hearing of the petition (i.e. the petition u/s 3) and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, the Court shall order a stay of the proceedings and, if such suit is so instituted, shall continue the stay, until the suit is finally decided.

Sub-section (4) is as follows:

If no such undertaking is given, or if after the expiry of the three months no such suit has been instituted, the Court shall itself decide the question.

Now, in the present instance, no undertaking was given by the present petitioner that a suit would be instituted within three months, and the Court therefore had jurisdiction under Sub-section (4) to decide whether the trust was of the kind to which the Act applies. The first objection of the petitioner is therefore overruled. It was next contended that the opposite parties had no such interest in the trust as entitled them to maintain an application u/s 3.

Sub-section (1) of Section 5 provides:

If the Court, on receipt of a petition u/s 3, after taking such evidence and making such inquiry, if any, as it may consider necessary, is of opinion that the trust to which the petition relates is a trust to which this Act applies, and that the petitioner has an interest therein, it shall fix a date for the hearing of the petition....

Now, the Court has decided that the trust is one to which the Act applies. It had therefore jurisdiction to decide whether the opposite parties were persons who had an interest of the nature required by Section by and it has decided that point in favour of the opposite parties.

In civil revision we cannot go behind that finding. The second objection also fails. The third objection of the petitioner is that the application u/s 3 is maintainable only against a person who is admitted to be a trustee. The section by its very words applies to a person having an interest in an express or constructive trust. The petitioner on his own showing, is a person in possession of the estate and claiming that he is rightfully in possession, as mahanth. At the very lowest therefore, he is a trustee de son tort, viz. he is a, constructive trustee who is accountable for the trust property of which he has taken possession.

On this ground alone therefore I should be prepared to overrule the third-objection of the petitioner. But I think that the third objection may also be rejected on another ground, and that is that whereas Clause (1) of Section 3 enables a Court to direct the trustee to furnish particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject-matter of the trust, and of the income belonging thereto, Clause (2) enables the Court to direct that the accounts of the trust shall be examined and audited.

Under Clause (2), in my opinion, the Court is enabled to direct the examination and audit of the accounts in whosoever''s hands the funds or the properties of the trust may be, quite apart from whether he is a trustee or not.

There is no merit therefore in any of the objections raised by the learned Counsel for the petitioner, and I would dismiss this application with costs; hearing fee three gold mohurs.

Varma, J.

I agree.