- (1.) HEAR the parties finally.
(2.) PETITIONER has prayed for quashing the order dated 16.1.2004 passed in Miscellaneous Case No. 90 of 2003 by the learned District Judge, Giridih, on the purported application under Section 34 of the Indian Trust Act (Trust Act for short) allowing respondent No. 3. Tapbrata Brahmchari, claiming himself to be the Trustee of Bharat Varshiya Brahmo Mandir Congregation, to sell the Trust property to the extent of 8 kathas of land to respondent No. 4. Petitioner has further prayed for quashing the order dated 30.8.2005 passed in Miscellaneous Case No. 2 of 2004 by the learned District Judge, Giridih, rejecting her application under Sections 47/48 of the Bihar Hindu Religious Trust Act, 1950 (Religious Trust Act for short) as not maintainable. Mr. Anil Kumar, appearing for the petitioner, submitted as follows. Petitioner is the wife of grand son of Mr. Amrit Lal Ghosh, who admittedly created the Trust in the year 1914. In the Trust Deed (An -nexure -9), there was a specific declaration that "......Trustee shall not have power to sell or mortgage or otherwise encumber the herditaments and premises hereinbefore dedicated and if any Trustee or Trustees shall sell or mortgage the same or any portion thereof such sale or mortgage shall be null and void.........." Respondent No. 3, Tapbrata Brahmchari, claiming to be the Secretary of Bharat Varshiya Brahmo Mandir Congregation, a society registered under the Registration of Societies Act, West Bengal, filed a purported application under Section 34 of the Trust Act which was registered as Miscellaneous Case No. 90 of 2003 in the Court of learned District Judge, Giridih for permitting him to sell a portion of Trust property to respondent No. 4. From the said application itself it will appear that the said society was created in 1981 -1982 i.e. much after creation of the said Trust. The said society wrongly claimed that the Trust -Giridih Nava Vidhan Brahmo Mandir is affiliated organization of the society which is the real beneficiaries of the Trust created by Sri Amrit Lal Ghosh. Respondent No. 3 had no locus standi to file such application under Section 34 of the Trust Act. The grounds on which the impugned order dated 16.1.2004 is passed in the Miscellaneous Case No. 90 of 2003, are beyond the scope of Section 34 of the Trust Act. Mr. Anil Kumar, further submitted that the order dated 30.8.2005 passed in Miscellaneous Case No. 2 of 2004, is also wrong as the scope of the petition filed by the petitioner under Sections 47/48 of the Religious Trust Act, was different.
(3.) MR . Debi Prasad, learned senior counsel, appearing for respondent No. 3, on the other hand, submitted that the members of Brahma Samaj are not Hinus and therefore, the petitioner's application under Sections 47/48 of the Religious Trust Act was not maintainable. Regarding the application filed on behalf of respondent No. 3 under Section 34 of the Trust Act, he submitted that the same was maintainable. The property was being encroached and therefore in the interest of the Trust, the property was sought to be sold on as is where is basis to respondent No. 4. He submitted that the Court has to see the interest of the Trust while passing the order under Section 34 of the Trust Act. He lastly submitted that the learned District Judge had jurisdiction to pass order and therefore, this Court should not interfere with the impugned orders.;