SOUMEN SEN,J. - (1.) This is an application by the Official Trustee for a direction upon the respondent to make payment of Rs. 17 lakhs towards fees in respect of sale of the premises no.8A, Pollock Street, Kolkata - 700 001. This application appears to have been filed pursuant to an observation made by the Hon'ble Division Bench while disposing of an appeal in relation to the sale of the trust property in which the beneficiary of the trust, namely, the school has objected to the commission claimed by the Official Trustee initially in the sum of Rs. 59.50 lakhs which has since been reduced to Rs. 17 lakhs. The reason for reducing the claim on account of commission is that in view of the Rules applicable for commission in respect of the sale of the said property, the applicable Rules would be Rules of 1914 instead of Rules of 1938. In view of the dispute raised at that point of time the Hon'ble Division Bench observed that the school shall set apart a sum of Rs. 1 crore and create a term deposit of the said sum and shall not encash the said term deposit without the leave of the Court. The parties were given liberty to approach the first Court and get the matter resolved with regard to the claim on account of commission. The school did not file any application. The Official Trustee, however, filed an application on 20th December, 2012. The Official Trustees contend that the petitioner has been acting as the Trustee to hold the properties on behalf of and for the benefit of the Jewish Girls' School, the respondent no.1. By an indenture dated 19th February, 1938 executed by and between the Governor of the Province of Bengal and the petitioner, premises no.8A and 8B, Pollock Street, Kolkata - 700 001 (hereinafter referred to as "the said premises') was transferred absolutely to the petitioner to be held by the petitioner for the benefit of the said Jewish Girls' School. The petitioner since thereafter had been holding the said premises for and on behalf of the respondent no.1. In the year 1955, the said premises was let out by the respondents to the Superintendent, Foreign Post, P and T Department, Government of India on monthly tenancy. The rent payable by the said tenant was Rs. 4,000/- per month which was being paid by the said tenant to the said Jewish Girls' School. The respondent no.1 had been paying the said commission on the said rent to the petitioner at the rate of 2% on the amount of rent collected in the month of August, 2011. The said property was, however, ultimately sold in December, 2011 on the basis of an application filed by the school for the sale of such property as the school was able to demonstrate that for the purpose of implementing the object of the trust it is necessary to sell the said properties. Both the Courts were convinced with the necessity to sell the said properties in order to implement the object of the trust. The properties were sold and only thereafter the dispute arose with regard to the payment of commission. Although the school is not represented but an affidavit which appears to have been served upon the Official Trustee by the school has been placed before this Court by the learned counsel representing the Official Trustee.
(2.) In the said affidavit, the respondent no.1 has contended that the Official Trustee of West Bengal is one of the trustees of the respondent no.1. The respondent no.1 is being managed, run and functioned under trust and applicant is one of the trustees as appointed in the year 1912. The terms for applicant to act as one of the trustees are limited and/or restricted within the ambit of the Trust Deed and the applicant is not entitled to enlarge its scope and terms and power beyond the Trust Deed, 1912. The respondent no.1 has denied that the Governor of the Province of the Bengal has transferred the right, title and interest of the said property absolutely to the applicant. The school authority has also denied that any commission has been paid by the respondent no.1 to the petitioner. It is stated that the transaction was required to be made for the benefit of the Girls' School for its social benevolent activities. The legal status of the applicant is nothing but one of the trustees of the school. The applicant being one of the trustees of the school cannot claim exorbitant commission under the veil of statutory provisions.
(3.) Mr. Indranil Nandi, learned counsel representing the Official Trustee has submitted that the Official Trustee is vested with the administration of the property by reason of the Deed of Settlement executed by the Governor of the Province of the Bengal on 19th February, 1938. It is submitted that in the petition the petitioner has disclosed some documents to show that some commissions were paid at least for some period to the Official Trustee for managing the said property. Mr. Nandi has referred to Section 17 of the Official Trustees Act, 1913 and Rule 5 read with Schedule I of the Rules relating to the Official Trustee of Bengal, 1914. It is submitted that since the Official Trustee has been appointed under Section 8 of the Official Trustees Act, 1913 by reason of Schedule I of the 1914 Rules, the petitioner is entitled to a fee of 1% as the gross value of the trust property or fund exceeds Rs. 50,000/-.;