Degamber Sen Sawhny v. Sanjeev Chopra & Ors.

Delhi High Court · 17 Jul 2014 · 2014:DHC:3313

Valmiki J. Mehta

CM(M) No. 1110/2012

2014:DHC:3313

civil petition_dismissed

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The Delhi High Court held that Section 34 of the Indian Trust Act, 1882 does not permit seeking court opinion on appointment of trustees, dismissing the petition as not maintainable.

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CM(M) 1110/2012
HIGH COURT OF DELHI
CM(M) No. 1110/2012 17th July , 2014 DEGAMBER SEN SAWHNY ......Petitioner
Through: Mr. Navin Kumar Jaggi and Mr. R.C.Nangia, Advocates.

VERSUS

SANJEEV CHOPRA & ORS. ...... Respondent
Through: Ms. Shobhna Takiar, Advocate.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes VALMIKI J. MEHTA, J (ORAL)

JUDGMENT

1. This petition under Article 227 of the Constitution of India impugns the order of the court below dated 29.8.2012 by which the trial court has dismissed the petition as not maintainable under Section 34 of the Indian Trust Act, 1882. Section 34 of the Indian Trust Act, 1882 reads as under:- “34. Right to apply to Court for opinion in management of trustproperty- 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 questions 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. 2014:DHC:3313 A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit. The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application. The costs of every application under this section shall be in the discretion of the Court to which it is made.”(emphasis is mine)

2. A reading of Section 34 makes it more than abundantly clear that questions which are asked for the opinion or advice or direction of the court have to be with respect to the management or administration of the trust property. The questions necessarily have to be qua the trust property, and which aspect is a sine qua non for filing of a petition under Section 34 of the Indian Trust Act.

3. A reading of the subject petition filed under Section 34 shows that it really deals with the issues of appointment of the Managing Trustee of the trust. The questions which have been formulated for being answered by the Court under Section 34 are contained in para-18 of the petition and which reads as under:-

“18. That petitioner being the Settlor and the Founder Trustee

of the Trust is constrained to file the present petition under

Section 34 of Indian Trust Act, 1882 and seeks the opinion of

this Hon’ble Court on the following questions:

(i) Whether without accepting the resignation of the Trustee Shri Sanjeev Chopra appointment of Ms. Meera Nath as a Managing Trustee in the meeting dated 20.05.2011 is valid and legal?

(ii) Whether the illegal appointment of Managing Trustee in the meeting dated 20.05.2011 can be ratified in the subsequent meeting of 15.03.2012?

(iii) The effect of operation of bank account by Ms. Meera

4. The trial court by the impugned order notes that the petition therefore is seeking opinion with respect to appointment of a Managing Trustee and related issues, which is beyond the scope of opinion to be given by the court under Section 34 of the Indian Trust Act.

5. Of course, I would only like to observe that whether the petitioner herein has to file a petition under Section 92 of CPC or any other proceedings in suit, that aspect is not decided by the impugned order, because what is the appropriate proceeding is not for the court to advice but for the petitioner to decide which proceedings would be filed.

6. In view of the above, I do not find any illegality in the impugned order, and this petition is therefore dismissed, leaving the parties to bear their own costs. JULY 17, 2014 VALMIKI J. MEHTA, J. ib

Degamber Sen Sawhny v. Sanjeev Chopra & Ors.

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