Smt Sashi Prabha Sharma vs Radhika Trust & Others
2008 Latest Caselaw 1752 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+     IAs.No. 5840/2005 & 5841/2005 in CS(OS)1939/2001



%                                       Date of decision: 26.09.2008


SMT SASHI PRABHA SHARMA                                .......Plaintiff
`
                                Through: Ms Jyoti Singh, Advocate


                                       Versus



RADHIKA TRUST & OTHERS                           .......Defendants
                                  Through: Ms Kiran Dharam, Advocate for
                                  the Defendant No.1,2 to 7, 9 and 10.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?                    Yes

2.    To be referred to the reporter or not?             Yes

3.    Whether the judgment should be reported
      in the Digest?                                     Yes


RAJIV SAHAI ENDLAW, J.

1. The applications have been filed by the son of the plaintiff

under Order 22 Rule 4 of the CPC for substitution on the demise of

the plaintiff and for condonation of delay of 19 days in filing the

application. It is stated that the applicant was suffering from typhoid

fever from 5th July, 2005 to 28th July, 2005. The applications are

opposed by the contesting defendants.

2. The application for condonation of delay is supported by the

affidavit of the applicant. There is no denial of the fact that the

IAs 5840-5841/2005 & CS(OS)1939/2001 Page No. 1 of 5 applicant was suffering from typhoid fever. I find sufficient ground

to have been made out for condonation of delay.

Accordingly, the delay in filing the application is condoned.

3. The plaintiff had instituted the present suit under Section 3

of the Charitable and Religious Trust Act, 1920 and with respect to

the Radhika Trust. It is the case in the plaint that the said Radhika

Trust was formed by Smt Shyama Devi, mother of the deceased

plaintiff; that the plaintiff had remained with Smt Shyama Devi

throughout her life in all the religious activities done by her and the

plaintiff remained an active participant in the work of the trust; that

prior to the institution of the suit, it was brought to the notice of the

plaintiff that the defendants were disposing of the properties relating

to the trust; that the khatauni relating to the land underneath one of

the properties of the trust was, inter alia, in the name of the plaintiff

who was as such successor in interest of her mother and thus had

sufficient interest in those properties and the plaintiff was as such

interested in the welfare of the trust and in seeing that its funds are

not misappropriated. The suit was accordingly filed to direct the

defendants to furnish accounts and other particulars of the trust and

for restraining them from misappropriating the funds and properties

of the trust. Under Section 3 of the Charitable and Religious Trust

Act, 1920 any person having an interest in any express or

constructive trust created or existing for a public purpose of a

charitable or religious nature, is entitled to apply by petition to the

court to obtain orders as mentioned therein against the trustees and

for accounts of the trust. I am, at this stage, not entering into the

IAs 5840-5841/2005 & CS(OS)1939/2001 Page No. 2 of 5 question whether the plaint / petition as filed by the deceased

plaintiff disclosed any interest of the deceased plaintiff or not.

4. The application for substitution, however, merely states that

the plaintiff has died and is survived by one son i.e., the applicant

and three daughters; that the plaintiff prior to her death had given a

general power of attorney to the applicant to look after all her

properties including the properties subject matter of the suit and

relate to the trust in question; that the plaintiff has left a Will under

which she has bequeathed all her properties movable and immovable

to her son, the applicant; that the daughters of the deceased plaintiff

thus have no right, title or interest in the said properties. On the

basis of the said averments the applicant has sought his substitution

in place of the plaintiff in the present suit.

5. It is significant that the application nowhere states that the

applicant has any interest in the alleged trust. Substitution is sought

merely on the ground of being the son and a Will in his favour.

6. The question, therefore, which arises whether a son of a

plaintiff/petitioner in a suit/petition under Section 3 of the Charitable

and Religious Trust Act, 1920 is, by virtue of such relationship,

entitled to be substituted. In my view the answer necessarily is to be

`no'. The right, if any, of the deceased plaintiff to institute the suit /

petition under Section 3 of the Act was personal to the deceased

plaintiff. The said personal right was claimed for the reason of being

IAs 5840-5841/2005 & CS(OS)1939/2001 Page No. 3 of 5 associated in the activities of the trust and/or for the reason of the

desire of the deceased plaintiff to ensure that the property of the

trust founded by her mother are not misappropriated. The applicant

without even averring that he has any such interest and without

disclosing such interest, for the reason of being a heir under the

Succession Act or the only heir under the Will, is not entitled to be

substituted. It has been held in Bishambhar Nath and Anr.

v Raghunath Prasad Sharma and Anr AIR 1971 All 207 that in a

proceeding under Section 92 of the CPC which is akin to a

proceeding under Section 3 of the Act, the personal heirs of the

plaintiff cannot be brought on record. The reliance by the applicant

in the present case on the Will of the deceased plaintiff in his favour

is also of no avail because the deceased plaintiff herself had not

claimed the trust properties to be her personal properties and thus

could not have bequeathed the same under her Will to the applicant.

The applicant, therefore, is not the legal representative of the

interest, if any, of the deceased plaintiff in securing due

implementation of the trust.

7. To the same effect is Balkishan Dass v Parmeshri Dass

AIR 1963 P&H 187 where also it was held that only a person having

an interest in the trust could be substituted and not merely for the

reason of being a natural heir of the deceased.

8. Even in Sitabai Ramchandra Jaltare and Ors v Masjid

Nurun Mohalla Jingerwadi AIR 1979 Bombay 109 it was held that

a suit relating to a trust could be continued by a new trustee only

IAs 5840-5841/2005 & CS(OS)1939/2001 Page No. 4 of 5 and not by the natural heirs of the deceased trustee. The applicant

herein merely for the reason of being the son of the deceased

plaintiff cannot be presumed to have any interest in the trust without

his himself claiming so. It was held by the Bombay High Court that

the natural heirs of a deceased party in a proceeding relating to trust

are not the legal representatives within the meaning of Section 2(11)

of the CPC and are not entitled to be substituted under Order 22 of

the CPC.

9. Lastly, I refer to the judgment of this court in Pirji Miraj-

Ud-Din v The Delhi Wakf Board 31 (1987) DLT 130 disallowing

the application for substitution by the son of the plaintiff claiming

to be Mutawalli of a Wakf. It was held by this court that a

Mutawalli had no personal interest except a right to manage and

administer the Wakf property and that in cases of personal actions

and right to personal office, right to sue does not survive on the

death of the claimant.

10. For the reasons aforesaid, the applicant having not

disclosed himself to be the legal representatives and the right to

sue having not been disclosed to have survived, the application is

dismissed.

RAJIV SAHAI ENDLAW (JUDGE) September 26, 2008 M

IAs 5840-5841/2005 & CS(OS)1939/2001 Page No. 5 of 5