Degamber Sen Sawhny vs Sanjeev Chopra & Ors.
2014 Latest Caselaw 3157 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 1110/2012
%                                                   17th July , 2014

DEGAMBER SEN SAWHNY                                  ......Petitioner
                Through:                 Mr. Navin Kumar Jaggi and Mr.
                                         R.C.Nangia, Advocates.


                          VERSUS

SANJEEV CHOPRA & ORS.                                    ...... Respondent
                  Through:               Ms. Shobhna Takiar, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?        Yes


VALMIKI J. MEHTA, J (ORAL)

1.    This petition under Article 227 of the Constitution of India impugns

the order of the court below dated 29.8.2012 by which the trial court has

dismissed the petition as not maintainable under Section 34 of the Indian

Trust Act, 1882. Section 34 of the Indian Trust Act, 1882 reads as under:-


      "34. Right to apply to Court for opinion in management of trust-
      property- Any trustee may, without instituting a suit, apply by
      petition to a principal Civil Court of original jurisdiction for its
      opinion, advice or direction on any present questions respecting the
      management or administration of the trust-property other than
      questions of detail, difficulty or importance, not proper in the opinion
      of the Court for summary disposal.
CM(M) 1110/2012                                                              Page 1 of 4
             A copy of such petition shall be served upon, and the hearing
      thereof may be attended by, such of the persons interested in the
      application as the Court thinks fit.

            The trustee stating in good faith the facts in such petition and
      acting upon the opinion, advice or direction given by the Court shall
      be deemed, so far as regards his own responsibility, to have
      discharged his duty as such trustee in the subject-matter of the
      application.

            The costs of every application under this section shall be in the
      discretion of the Court to which it is made."(emphasis is mine)



2.    A reading of Section 34 makes it more than abundantly clear that

questions which are asked for the opinion or advice or direction of the court

have to be with respect to the management or administration of the trust

property. The questions necessarily have to be qua the trust property, and

which aspect is a sine qua non for filing of a petition under Section 34 of the

Indian Trust Act.


3.    A reading of the subject petition filed under Section 34 shows that it

really deals with the issues of appointment of the Managing Trustee of the

trust. The questions which have been formulated for being answered by the

Court under Section 34 are contained in para-18 of the petition and which

reads as under:-


CM(M) 1110/2012                                                             Page 2 of 4
              "18. That petitioner being the Settlor and the Founder Trustee
             of the Trust is constrained to file the present petition under
             Section 34 of Indian Trust Act, 1882 and seeks the opinion of
             this Hon'ble Court on the following questions:

             (i)     Whether without accepting the resignation of the Trustee
                     Shri Sanjeev Chopra appointment of Ms. Meera Nath as
                     a Managing Trustee in the meeting dated 20.05.2011 is
                     valid and legal?


             (ii)    Whether the illegal appointment of Managing Trustee in
                     the meeting dated 20.05.2011 can be ratified in the
                     subsequent meeting of 15.03.2012?


             (iii)   The effect of operation of bank account by Ms. Meera
                     Nath acting as a Managing Trustee (illegally appointed)
                     till 15.03.2012 and thereafter?"


4.    The trial court by the impugned order notes that the petition therefore

is seeking opinion with respect to appointment of a Managing Trustee and

related issues, which is beyond the scope of opinion to be given by the court

under Section 34 of the Indian Trust Act.


5.    Of course, I would only like to observe that whether the petitioner

herein has to file a petition under Section 92 of CPC or any other

proceedings in suit, that aspect is not decided by the impugned order,

because what is the appropriate proceeding is not for the court to advice but

for the petitioner to decide which proceedings would be filed.

CM(M) 1110/2012                                                           Page 3 of 4
 6.    In view of the above, I do not find any illegality in the impugned

order, and this petition is therefore dismissed, leaving the parties to bear

their own costs.




JULY 17, 2014                               VALMIKI J. MEHTA, J.

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