- (1.) This application under Section 115 of the Code of Civil Procedure is directed against the order No. 16 dated 17.5.99 passed by the learned District Judge, Howrah in Misc. Case No. 25 of 1998. It appears that almost on the same ground the petitioner came before this Court against order No. 11 dated 3.12.98 passed by the trial Court. By the order dated 9.3.96 this Court made some observations and remanded the matter to the trial Court for re-consideration of the petition pending before that Court in the light of the terms of the trust deed as well as the deed of agreement and also the provision of the Indian Trust Act without being prejudiced by any expression contained in the said order. The learned trial Judge thereafter by his impugned order dated 17.5.99 refused the prayer for permission on the ground that the petitioner in effect was going to transfer the Debuttar property permanently by way of lease and on the second ground that the consideration amount of Rs. 2 lakhs for 30 Cottahs of land in Belur was far below the market price and on the third ground that the petitioner-Shebait wanted to transfer the said property keeping flats for his personal use, which was not considered for the benefit of the deity. On being aggrieved by such order of rejection of permission the present revisional application has been filed again by the same petitioner.
(2.) Whether it is a Debuttar property or whether it is a public trust or a private trust all these questions are necessary to be clarified in the light of the trust deed. I have been led through the trust deed of 1933 by the Senior Advocate for the petitioner and nowhere in the trust deed it appears that the property covered by the trust was endorsed to the deity, Shri Shri Satyanarayan Jew, rather it is clear that the trust has been created with the purpose of deserving the benefit of the property under that trust for the beneficiary of the trustee and the decendents of the original creators of the trust and his heirs. The present petitioner is the only surviving trustee at present. Of course a charge has been created by the trust deed for the Seva Puja of the deity by the surviving trustee. It appears from the original trust deed that only Rs. 15/- per month were allotted to make the Seva Puja out of the total income of the trust property. In this context, it is necessary to remember again that deed was executed in 1933 and at that time eight annas per day would meet the cost of daily expenditure of Seva Puja but in the present market value such an amount of eight annas can simply purchase one banana and nothing more. Therefore, it becomes necessary to augment the income of the trust property in order to meet the Seva Puja of the deity properly and also for maintaining the surviving trustee with his family. According to the provision of law when the entire income from the trust property is diverted to public purpose then only such trust can be said to be public trust but when the trust is created not only for meeting the Seva Puja of the deity but mainly for the maintenance of the decendents and heirs of the original creator of trust then it is absolutely a private trust, because the beneficiary of the trust is the decendents and heirs of the creator of the trust. Therefore, by no stress of imagination it should be said that the property under the trust is a Debuttar property. This impression taken by the trial Court is not correct in view of the terms of trust deed. Therefore, in answer to the question whether it is a Debuttar property, we should record that it was not a Debuttar property although a charge is there over the properties to maintain the Seva Puja of the deity. Again it is not a public trust but it is a private trust created for the benefit of the decendents and heirs of the original creator of the trust.
(3.) So far as the second ground taken by the trial Court is concerned that the consideration for the transfer of 30 Cottahs of land at only 2 lakhs of rupees was far below the market value is also a misconception on the part of the trial Court because the deed of agreement shows that after completion of the construction of the multi-storied building the developer agreed to handover the ownership of 30 per cent of the total area covering 11,936 sq. ft. approximately and the minimum market value as calculated by the petitioner in his revisional petition has been shown as Rs. 53,71,200/- at the rate of Rs. 450/- per sq. ft. of the total value of the thirty per cent. This particular rate per sq. ft. is likely to be enhanced in future when the construction will be completed from the trend of rising price index there value of Rupees fifty three lakhs seventy one thousand and two hundred as estimated will be enhanced by more .......................... when the construction will be completed. Again the trustee cannot enjoy the entire 11,936 sq. ft. floor area for his personal use. We should not overlook in this contest that the trust deed has made provision for family accommodation of the surviving trustee within the trust property. Therefore, definitely the petitioner shall have the right to occupy some portion of that thirty per cent for his personal use with the members of his family ; but the property would fetch so much value that can be utilised even in future for the maintenance of the daily Seva Puja of the deity and also the maintenance of the family and also for the maintenance of the temple and its surrounding area and to meet the other expenses like payment of taxes, water rate, electric charges etc. Therefore, it is not correct to say that the surviving trustees are going to misappropriate the entire income from the thirty per cent of the total floor area of the proposed multi-storied building.;