ANJALI BIRLA SAWHNEY Vs. TIRATHRAM SHAH CHARITABLE TRUST

JUDGEMENT

(1.) By these two applications the defendants seek rejection of the plaint under order VII Rule 11 CPC, inter alia, on the grounds that the suit is barred by limitation, discloses no cause of action and that no leave of the Court has been sought under Section 92 CPC.

(2.) Learned counsel for the applicants/ defendant Nos. 1&4 in IA 16634/2010 contends that in a dispute relating to the trust falling under Clause, A, B and H of Section 92 CPC, the plaintiff before filing the suit is required to seek leave of the Court and in the absence thereof the suit is liable to be rejected. [See Hamid Ahmed Vs. Asad Mueed & Ors., 2009 162 DLT 520]. The plea of the plaintiffs that they are agitating private rights is also not sustainable in view of the law laid down by this Court in Shishir Bajaj and Ors. Vs. India Youth Centres Trust and Ors., 2010 171 DLT 647. Regarding the plea that the suit is barred by limitation, it is contended that the plaintiffs claim their right to be appointed as trustees of defendant No.1 in place of Shri Pavan Chander Mohan Sawhney who passed away on 13th January, 2002. Thus, the cause of action to the plaintiff No.1 who is the wife of the deceased and plaintiff No.2 who is the daughter of the deceased arose on 13th January, 2002. However, the suit has been instituted on 2nd June, 2010. The period of limitation prescribed under Article 58 of the Limitation Act is three years from the time when the right to sue first accrues. [See Khatri Hotels P. Ltd. & Anr. Vs. Union of India & Anr., 2011 182 DLT 597 and Hamid Ahmed Vs. Asad Mueed & Ors., 2009 162 DLT 520]. Even otherwise, the defendant No.4 was appointed as trustee on 7th July, 2006 and thus even counting the cause of action from the said date, the present suit is barred by limitation. Further, the defendant No.1&4 are not the family members of the plaintiff and no settlement has been arrived at with defendant No.1&4. In the absence of the other trustees being made parties, the present suit is not maintainable.

(3.) Learned counsel for the applicants/ defendants No. 2 &3 in IA No. 16958/2010 contends that even taking the averments in the plaint as it is, no cause of action is disclosed. Paras 4 and 12 of the plaint disclose the establishment of the trust and the rule governing the number of trustees, appointment of new trustees and the removal of trustees. The selection of trustees has to be by majority of votes and thus the defendants No.2&3 alone have no role to play therein. In the entire plaint it is nowhere pointed out that the plaintiffs have a legal right to be appointed. Rather in Para 34 of the plaint it is admitted that settlors have given discretionary powers to the present trustees to appoint any other person as trustee. Thus, the plaintiff is not entitled to any relief of declaration under Section 34 of the Specific Relief Act. Even as per paragraph 14, the cause of action arose to the plaintiffs on the death of Shri Pavan Chander Mohan Sawhney on 13th January, 2002 and thus the present suit is hopelessly barred by limitation. Further, the first prayer in the suit is regarding the relief of declaration which is time barred and even consequential reliefs of mandatory injunction are barred by limitation in view of Article 113 of the Limitation Act. It is well settled that if declaratory reliefs are time barred, then the consequential reliefs can also not be entertained. [See State of Punjab & Anr. Vs. Balkaran Singh, 2006 12 SCC 709]. In view of the law laid down in T Arivanandam Vs. T.V. Satyapal & Anr., 1977 4 SCC 467 such a suit should be nipped in the bud and not permitted to be proceeded. Every fact does not constitute a cause of action. Only facts which give right to sue constitute a cause of action. Since the majority votes are necessary for declaration of a person being the trustee of defendant No.1, the defendant No.2&3 can have no role alone to play. The intention of the settlors of the trust was very clear that they did not want the trust to be operated by way of inheritance but only want people who were the right person i.e. persons willing to act. No directions can be issued to defendants No.2&3 to appoint the plaintiffs as trustees.