Calcutta High Court

Prochy N. Mehta & Anr vs Noshir Tankariwala & Ors on 11 May, 2023

                  IN THE HIGH COURT AT CALCUTTA

                 (Ordinary Original Civil Jurisdiction)

                             ORIGINAL SIDE

Present:

The Hon'ble Justice Krishna Rao



                          IA No. GA 8 of 2023
                          IA No. GA 9 of 2023
                           In CSOS 1 of 2017



                        Prochy N. Mehta & Anr.

                                   Versus

                       Noshir Tankariwala & Ors.



           Mr. Dhruba Ghosh, Sr. Adv.
           Mr. Anirban Kar, Adv.
           Mr. Munshi Ashiq Elahi, Adv.
           Ms. Ajeeya Choudhury, Adv.
           Ms. Snigdha Das, Adv.
                                            .....For the Plaintiffs.


           Mr. R.K. Khanna, Adv.
           Mr. Aman Khemka, Adv.
                                      .....For the defendant nos. 2 & 3


           Mr. Phiroze Edulji, Adv.
           Ms. Samira Grewal, Adv.
                                            ....For the intervenor
                                           2


Hearing Concluded On : 22.03.2023

Judgment on                : 11.05.2023

Krishna Rao, J.:


1.

The applicant has filed the present application being GA 8 of 2023

praying for dismissal of the suit as abated since the plaintiffs have not

taken any steps for deletion of the name of the defendant no. 1 upon

his death on 5th September, 2020 and by not taking any steps for

adding Mr. Ratan Postwalla and Mr. Rustom Daroga as defendants in

place of the defendant no. 1.

2. The plaintiffs have filed an application being GA 9 of 2023 praying for

amendment in the plaint originating summon by recording the death of

defendant no. 1 and by adding the name of two new trustees as

defendant no. 1A and 1B.

3. The plaintiffs have filed the originating suit being CSOS No. 1 of 2017

seeking the determination of the following queries :

i. Whether children of Parsi women professing Zoroastrian faith married to a non-Parsi, properly initiated to Zoroastrian faith by performance of Navjot Ceremony, are "member of Parsi community professing Zoroastrian faith" within the meaning of Clause 3 of Indenture of Trust dated 19th September, 1915?

ii. Whether children of Parsi women professing Zoroastrian faith married to a non-Parsi, properly initiated to Zoroastrian faith by performance of

Navjot Ceremony, have a right to worship and perform religious rites and ceremonies at the Late Ervad Dhunjeebhoy Byramjee Mehta's Zoroastrian Anjuman Atash Adaran?

iii. Whether the provisions of Indenture of Trust dated 19th September, 1915 prevent the children of Parsi women professing Zoroastrian faith married to a non-parsi, properly initiated to Zoroastrian faith by performance of Navjot Ceremony, from performing worship and religious rites and ceremonies at the Late Ervad Dhunjeebhoy Byramjee Mehta's Zoroastrian Anjuman Atash Adaran?

4. During the pendency of the originating suit, the defendant no. 1 died

on 5th September, 2020 and after the death of defendant no. 1, an

election was held on 29th May, 2022 wherein two new trustees were

elected, namely Mr. Ratan Postwalla and Mr. Rustom Daroga to the

said Trust.

5. Mr. Phiroze Edulji, Learned Advocate representing the applicant herein

submits that the plaintiffs had the knowledge that the defendant no. 1

has expired and after the death of defendant no. 1, two new trustees

were elected to the said Trust but the plaintiffs have not taken any

steps for recording the death of defendant no. 1 and for addition of the

name of two new trustees in place of the defendant.

6. Mr. Edulji submits that as the plaintiffs have not taken any steps after

the death of defendant no. 1 and thus the suit filed by the plaintiffs are

abated.

7. Mr. Dhruba Ghosh, Learned Senior Advocate representing the plaintiffs

submits that after filing of the present application by the applicant, the

plaintiffs have made enquiry and ascertained that the defendant no. 1,

who is one of the trustee died on 5th September, 2020.

8. Mr. Ghosh submits that the applicant being the President of The Parsi

Zoroastrian Association filed the present application praying for

dismissal of suit as abated but the applicant is neither a proper party

nor a necessary party in CSOS No. 1 of 2017 and thus the applicant is

not entitled to make such application.

9. Mr. Ghosh submits that the defendants were at all material time

represented by Advocates but no formal notice of death nor the details

of the subsequent appointed trustees of the said Trust neither provided

to the plaintiff nor was brought to the notice of this Court and due to

which the plaintiffs have not taken any steps for recording the death of

the defendant no. 1 and for adding the newly appointed trustees.

10. Mr. Ghosh submits that even after the death of the defendant no. 1,

right to sue survived and the remaining trustees to the Trust continue

to represent the trust in the present suit. He further submits that the

defendant no. 1 was made as a party in the suit in the capacity of a

trustee and thus suit does not abate on his death as remaining trustees

are already on record.

11. Mr. Ghosh relied upon the following judgments :

i. 1993 Mh.L.J 588 (Abaji Daulata Yadav -vs- Dhondiram

Jagedevrao Yadav & Ors.).

ii. (1976) 1 SCC 103 (Shri Rikhu Dev, Chela Bawa Harjug Dass

-vs- Som Dass (Deceased) Through His Chela Shiam Dass).

iii. (2013) SCC OnLine Cal 146 (Raj Grihi Ram -vs- Anand Kumar

Shaw).

12. Mr. Edulji representing the applicant submits that the averments

made by the plaintiffs in the affidavit-in-opposition GA No. 8 of 2023

and GA 9 of 2023 filed by the plaintiff are totally false and misleading

as after the demise of the defendant no. 1 on 5th September, 2020, an

Online Memorial Service was held for him on 14th September, 2020

wherein both the plaintiff no. 1 and her husband Numazar Dorab

Mehta both spoke on the said occasion. Mr. Edulji further submits that

after the demise of defendant no. 1, another Online Memorial Service

was held for him on 12th September, 2020 and the said event was

streamed live on YouTube and from the photographs of the YouTube, it

appears that plaintiff no. 1 and her husband were present.

13. By referring the same, Mr. Edulji submits that the claim of the plaintiffs

that only after receipt of the copy of application of GA 8 of 2023, the

plaintiffs ascertained that defendant no. 1 died on 5th September, 2020

is a false and misleading statement and the said statement is made

only for the purpose of getting favourable order from this Court.

14. Mr. R. K. Khanna, Learned Advocate representing the defendant nos. 2

and 3 submits that the plaintiff has not come before this Court with

clean hands and had suppressed the real facts and to obtain favourable

order has made a misleading and false statement and as such the

application filed by the plaintiff being GA 9 of 2023 is to be dismissed

and the application filed by the applicant being GA 8 of 2023 is liable to

be allowed.

15. Mr. Khanna has relied upon the following judgment :

i. (1994) 1 SCC 1 (S.P Chengal Varaya Naidu BY LRS. -vs-

Jagannath (Dead) by LRS & Ors.)

16. Heard the Learned Counsel for the parties, perused the materials on

record and the judgment relied by the parties.

17. The plaintiffs have filed the originating summon suit seeking

determination of the queries mentioned in paragraph 3 above.

Admittedly, the property belongs to a Trust and the plaintiffs and the

defendants are the trustees of the Trust Estate. The defendant no. 1

died on 5th September, 2020. After the death of the defendant no. 1,

two new trustees were elected in the said Trust.

18. The applicant of GA 8 of 2023 are not a party to the suit but being a

Parsi Zoroastrian Association have made an application for addition as

defendant in originating summon suit being GA 1576 of 2017 and

accordingly this Court by an order dated 10th January, 2019 permitted

the applicant to file its pleading in respect of the questions formulated

in paragraph 15 of the plaint and make submission at the time of

hearing of the originating summon suit. The said order was carried in

appeal and the Appellate Court by an order dated 12th February, 2020

clarified that the applicants were given a right of audience and were

allowed to file pleadings but were not formally added as parties.

19. In view of the orders passed by this Court dated 10th January, 2019

and the order passed by the Appellate Court dated 12th February, 2020,

it is clarified that the applicants of GA 8 of 2023 are not the parties to

the suit and were only allowed to participate in the proceeding since,

interpretation of the Trust Deed is involved which may affect the Parsi

Community at large.

20. In the judgments referred by Mr. Ghosh in the case of Abaji Daulata

Yadav (supra), the Hon'ble Bombay High Court held that :

"Only those trustees who are elected or appointed under the Scheme of the Trust can step in his shoes and continue the suit. Such a new trustee could not

by any stretch of imagination be said to be legal representative of the deceased trustee. In any case, the right of the deceased plaintiff to act as a trustee would not pass on to the new trustee on the death of the deceased trustee. The new trustee would get his right not by virtue of death of the previous trustee but because of his being elected or appointed as a trustee under the Scheme of the trust................ Now obviously such a case will not be covered by Order 22, Rule 3, which contemplates the legal representatives of the deceased plaintiff being brought on record. Since, the new trustee would not be a legal representative of the deceased trustee, in that sense there is no question of the new trustee applying for being brought on record under the Provisions of Order 22, Rule 3 of the Code. Obviously, such a case would be covered by Rule 10 of Order 22 of the Code.

It was further held that unlike Rule 3 of Order 22, no limitation is prescribed for presentation of application under Rule 10 and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or the defendant devolves and hence the right to make an application under the latter rule is right which accrues from day to day and can be made at any time during the pendency of the suit and there is no abatement under that rule."

21. In the judgment reported in Shri Rikhu Dev, Chela Bawa Harjug

Dass (supra), the Hon'ble Supreme Court held that :

"The Court took the view that newly appointed trustees are not legal representative of the trustees who had filed the suit and thereafter died during the pendency of the suit, that they can be added as parties under Order 22 Rule 10 notwithstanding the fact that the period of limitation for an application to implead them under Order 22, Rule 3 had elapsed.

22. The judgment passed by the Hon'ble Division Bench of this Court in the

case of Raj Grihi Ram (supra), the Hon'ble Court held that "there is no

limitation to take out an application under Order 22, Rule 10 of the Code

of Civil Procedure or in the Limitation Act, 1963".

23. In the present case also the plaintiffs have filed the suit for

determination of queries by this Court. The defendant no. 1 was one of

the trustees and as such he was made as a party defendant in the

originating summon suit. The defendant no. 1 died during the

pendency of the suit and after the death of the defendant no. 1, two

new trustees, namely Mr. Ratan Postwalla and Mr. Rustom Daroga

were elected to the said Trust on 29th May, 2022. The plaintiffs have

filed an application for recording the death of defendant no. 1 and