Arun Kumar Bhattacaarya, J. - (1.) The hearing stems from an application being G.A. 505 of 2006 filed by the defendants praying for revocation of the leave granted under Clause 12 of the Letters Patent and Section 92 of the Civil Procedure Code and for dismissal of the suit being 618 of 2001 inter alia on the grounds that the plaintiffs have sued not to vindicate the right of the public but for declaration of their individual and personal rights, that the properties, movable and immovable, are situated outside the jurisdiction of this Court and this is primarily a suit for land and that the reliefs sought for are barred and beyond the scope of Section 92 of the Civil Procedure Code.
(2.) Before opening the discussion, the miniaturised version of the plaintiffs, as borne out in their plaint, need be stated: One Bisweswarlal Lath of 19, Basak Street, Calcutta - 7 created a public and religious Trust by virtue of an indenture dated 24.07.52 appointing himself and four others as the first five trustees, providing therein the disqualifications to be a trustee in Clauses (a) to (e), of which Clauses (b) and (c) are not applicable to the settlor and the members of his family. The power to appoint new or additional trustee not exceeding the maximum number fixed and to fill up the vacancies in the office of the trustees vested in the settlor and after his death in the remaining trustees, the power being so exercisable that at least one of the trustees, available and agreeable, be from amongst the descendants in the direct male line of the settlor to be chosen according to the principles laid down that amongst the descendants in the direct male line, the senior in age shall have precedence over the junior and if the male descendant is a minor his guardian will be appointed trustee until the attainment of majority by the minor descendant when such guardian will automatically cease to be a trustee and the trustees will appoint such male member as a trustee in the place of the said guardian. In course of time considerable properties e.g. Dharamsala, a house for cows, agricultural land all in the district Jhunjhun in the State of Rajasthan, equity shares etc., worth of Rs. 1,22,00,000/- were obtained and fell in the hands of the trustees. The settlor Bisweswarlal and another trustee Motilal Lath died in 1956 and 1958/59 respectively, and the remaining three trustees continued to act as trustees. According to the provision of the Trust Deed, the number of trustees should not be less than three. In 1980 Sitaram Lath, eldest son of trustee Banwarilal Lath was appointed as a trustee. Due to removal of Shyam Sunder Lath from the trusteeship by an appropriate order of the Court, the number of trustees became two only viz Banwarilal Lath and Sitaram which necessitated the addition of at least one more person as a trustee. Bisweswarlal have two sons viz Banwarilal and Shyam Sunder, out of whom Banwarilal was elder. Five sons of Banwarilal in order of seniority in age are Sitaram, Purushottam, Vinod (plaintiff No. 1), Surendra (defendant No. 1) and Pawan (defendant No. 2). Upon removal of Shyam Sunder the next eldest son of Banwarilal is Purushottam who resided and resides in Bihar and seldom comes to Calcutta goes to Rajasthan. He is ver sick and suffers from heart ailments, and as such it is not possible for him to act or to attend the office of trust at 19, Basak Street, Calcutta-7 and he also declined to act as a trustee. So, plaintiff No. 1 being the third eldest son of Banwarilal is entitled to become a trustee. But between 1976 and 1980, Surendra Kumar Lath - fourth son of Banwarilal, was chosen and appointed as a trustee which is wrongful and contrary to Clauses 39 and 40 of the Trust Deed. Upon the death of Banwarilal on 10.09.96, Sitaram, Surendra Kumar and Promod Kumar Saraf acted as trustees. The appointment of Promod Kumar was also wrongful and contrary to the said provisions of Trust Deed. On the death of Sitaram on 15.12.98, the number of trustees went below the minimum of three, and so the remaining two trustees were incapable of exercising any right of appointment of a new trustee. Despite communication by plaintiff No. 1 of his intention to act as a trustee, defendant Nos. 1 and 3 chose defendant No. 2 Pawan Kumar the next brother of plaintiff No. 1 and defendant No. 1 as a trustee, and such appointment is null and void. The directions are not followed in respect of sending donation to Kashi Mumukshu Bhawan Sabha for a long time, no income of agricultural land has ever been incorporated in the accounts of trust fund, 50,000 shares of Bajaj were fraudulently sold and misappropriated and Dharamshala is not being maintained. The activities of the defendants as trustees are also contrary to the purpose of the trust. The defendants have managed to create false and/or cryptic balance-sheets only for income tax purposes and there are huge surplus in the hands of the trustees which may be converted for personal benefits of the trustees. Hence the suit for declaration, permanent and mandatory injunction.
(3.) Mr. Mitra, learned counsel for the defendants, on referring the cases of Swami Parmatmanand Saraswati v. Ramji Tripathi reported in AIR 1974 Supreme Court 2141 (paras 9 and 10) and Sadhana Pal v. Jagadish Bhar reported in 98 CWN 981 advanced argument contending that since the present suit is virtually for vindication of personal cause of plaintiff No. 1 for his appointment along with plaintiff No. 2 as trustees in place of defendant Nos. 1 and 2 and not for the benefit of public, the provisions of Section 92 of C.P. Code are not attracted and so it being an ordinary suit, it should have been filed in the Court having jurisdiction over the immovable properties in the State of Rajasthan. Mr. Mitra further contended that as soon as trust was created, the properties vested in the trustees who became the owners of the same and so the question of removal of existing trustees in respect of those properties or appointment of the plaintiffs as trustees in their place and management and control over society which in fact is control over the assets including land of the trust is a suit of land and as such it being not covered within the ambit of Clause 12 of the Letters Patent, leave granted under Clause 12 of the Letters Patent should be revoked, in support of which the cases of Delhi and London Bank v. Wordie, reporeted in ILR 1876(I) Cal 249; T.B.K.S. Maharaj v. Mayapore Sree Chaitanya Math reported in AIR 1983 Calcutta 420 ; Amal Kumar Ghatak v. M/s. S.K. Enterprises Ltd. reported in AIR 1995 Calcutta 91 (paras 28 and 33);, Bholanath Shaw v. Badrinath Shaw reported in AIR 1974 Calcutta 292 (paras 10 to 13), Cityscape Developers (P) Ltd. v. Alka Builders (P) Ltd. reported in 2000(1) CHN 381 (paras 28 to 30) and A. S. Overseas Pvt. Ltd. v. Sri Sri Iswar Chinta Haran Shiv Thakur reporated in Cal. LT. 1994 (2) HC 166 were relied upon.;