SATYA NARAIN Vs. OFFICIAL TRUSTEES U P ALLAHABAD

JUDGEMENT

(1.) This Special Appeal under Chapter VIII Rule 5 of the Rules of the Court has been filed against the order of the learned Single Judge dated May 9, 1979 dismissing the application filed by the appellant for the following reliefs: (1) treat and declare the order dated 21st May, 1975 appointing the opposite party as the sole trustee of Shrimati Rama Bai Trust as null and void. (2) remove the opposite party from the office of Trustee of the said Smt. Rama Bai Trust. (3) restrain the opposite party from alienating any immovable property or other corpus of the Trust. (4) restrain the opposite party from alienating the immovable property and the corpus belonging to Smt. Rama Bai Trust during the pendency of the present petition and to stay proceedings in Civil Misc. Case No. 59 of 1968 pending in the Court of 1st Additional District Judge, Allahabad and fixed for 20th January, 1979 for disposal for the same duration. The facts relevant for the purposes of the present appeal are these: Smt. Latifan Bai alias Rama Bai executed a will on 8th June, 1949 bequea thing her entire property, movable and immovable, in favour of the idols of Sri ram, Lakshman Janki in the temple in house No. 1 Tripolia, Grand Trunk Road, Allahabad Consequently there came into existence a Trust, which was known as Rama Bai Trust. The trustees were named in the said will. Having realised that the trustees were not in a position to execute the Trust in accordance with the directions contained in the said will, they requested the Official Trustee U. P. Allahabad through their President vide his letters dated 30-12- 1973 and 18-12-1974 to assume charge of the said Trust in their place. On being approached by the Trustees the Official Trustee made an application under Section 10 of the Official Trustees Act (Act No. II of 1913) for being appointed as the sole Trus tee of Smt. Rama Bai Trust, Allahabad in this Court. The said application was registered as Trust Case No. 1 of 1975 and was allowed by an order dated 21-5- 1975 passed by Hon'ble Satish Chandra, J. (as he then was ). The learned Single Judge observed in the said judgment: "the main object of the Trust was to construct a Dharamshala as direct ed hi the will. It has been stated in the application that the Trustees have failed to accomplish the object of the Trust as desired by the Testator. It was also stated in the application that the trustees are not now willing to act as such. The President of the Trust has, therefore, by his letters dated 30-12-1973 and 18-12-1974, requested the petitioner to assume charge of the Trust in their place. . . . . . . . . The Official Trustee, U. P. Allahabad is appointed as the sole Trustee of Smt. Rama Bai Trust, Allahabad. " This order of the learned Single Judge became final. It for the annulment or setting aside of this order that the present application giving rise to this appeal had been filed under Section 26 read with Section 10 of the Official Trustees Act. A number of grounds had been taken in the application for setting aside the said order. One of them was that under Section 7 (5) of the Official Trustees Act, there is a prohibition against the Official Trustee from accepting any trust for a religious purpose, and as the duties required to be performed by the Official Trustee are religious in nature, the appointment made was null and void. The High Court, according to the appellant, was not vested with any powers to appo int the Official Trustee under the said Act. For the purpose of establishing that the appellant Satya Narain was a person interested in the Smt. Rama Bai Trust and was as such entitled to file the application for setting aside the order dated 21-5- 1975 the appellant alleged that the proposed sale of one of the properties of the Trust by the Official Trustee was against the deed and testament; hence the petitioner being related to the deceased Smt. Rarna Bai was entitled to move the said application. Smt. Rama Bai, according to the appellant, was his aunt and the appellant was the sole surviving member of the family of which Smt. Rama Bai was a member. The application was contested by the Official Trustee as well as by those with whom the agreement to sell the house had been entered into by the Trus tees of the Trust. The learned Single Judge rejected the application on May 9, 1979. Against the said order the present appeal has been filed. The learned Single Judge repelled the arguments that the Official Trustee had been appointed to perform, supervise or control the religious rites and ceremonies The purpose of a Trust, according to the learned Single Judge, was not religious because it was more charitable in its nature. The learned Single Judge held that the Offi cial Trustee had not been appointed for performance of religious duties but only for supervision of the activities, which were secular in nature. The learned counsel for the appellant assailed the judgment of the learned Single Judge on three grounds. The first was that the deed creating the Trust was for religious purposed hence the appointment of the Official Trustee being in contravention of sub-section (5) of Section 7 of the Official Trustees Act was invalid. The second point raised was that the dedication made by the deed in question amounted to creation of an endowment and not a Trust; hence the Official Trustees Act did not apply to it. The third submission was that Section 10 of the Official Trustees Act read with Rule 3 framed thereunder contravenes Articles 25 and 26 of the Constitution of India, as the provisions of the Act interferes with the freedom to manage the religious affairs. Having heard the learned counsel for the parties we are unable to find substance in any of the three submissions made in support of the appeal. Before we deal with the submissions of the learned counsel for the appellant, we consider it appropriate to mention the points, which had been raised on behalf of the res pondents about the maintainability of the application filed by the appellant before the learned Single Judge. The first of them was that the application for setting aside the order dated 21-5-1975 filed by the appellant was belated and as such was liable to be dismissed The second was that the appellant had no focus standi to file the application. Both of these submissions appear to us to fee second and worthy of acceptance. Taking up the question of limitation first we find that in paragraph 10 of the affidavit filed in support of the application it was said that the appellant learned about the intended sale of the properties mentioned in this paragraph by the trustees recently to the filing of this affidavit. Having come to know of the intended sale he applied for being impleaded as a party or as an intervener in the said proceedings pending before the 1st Additional District Judge, Allahabad. The allegations made in the application have been denied as false. The counter case taken has been denied by Suresh Chandra. In paragraph 10 of the counter affidavit it is stated that the appellant had full knowledge about all proceedings in Misc. Case No. 59 of 1968 pending in the Court of the District Judge, Allaha bad since long. The appellant himself made an offer to purchase the property in dispute when the same was advertised for sale in July, 1968. The allegation therefore, that the appellant had come to know of the proceedings on the dates alleged by him was absolutely false. After perusing the affidavits exchanged between the parties we find that the case taken by the appellant about the knowledge of the proceedings cannot be believed. The appellant had the knowledge of the proceedings since long and that he falsely alleged that the transaction for sale of the part of property bet ween Suresh Chandra and the original trustees of the Trust came to his know ledge through a friend only a few days of the moving of the application. From the affidavit filed on behalf of the Official Trustee it is clear that Suresh Chandra, the intended purchaser of the property, lived in the adjoining portion of the Trust property. It was impossible to believe that the appellant did not come to know of the agreement executed between Suresh Chandra and the Trustees in the year 1968. The case of the appellant, therefore, that he had no knowledge of the proceedings pending in this Court is not worthy of belief. Several facts have been brought on record on behalf of the Official Trustee and Suresh Chandra, which lead to only one conclusion that the appellant had full knowledge of the proceedings from the very beginning and that he also knew of the appointment of the Official Trustee on a date much before when the order of such appointment had been made by the Testamentary Judge of the High Court on 21-5-1975. He has made a wrong and false statement in the affidavit filed in support of the application on 18-1-1979. The question that is required to be determined is whether there is any period of limitation for filing an application of the present nature. Reliance on behalf of the respondents has been placed on Article 137 of the Limitation Act, which according to them applies to the applications for which no time of limita tion is provided elsewhere in the Limitation Act. The argument of the appel lant, however was that since the proceedings for appointment of the Trustee was null and void, the Article 137 did not apply. The learned counsel submit ted that as the Court has no jurisdiction to appoint a Trustee, it is the duty of the Court to recall and correct that order. For correcting error by a Court it self no period of limitation is provided for. It is no longer a matter of dispute that Article 137 of the Limitation Act applies to an application made to a Court under any Act. The present application was made to the High Court, which is the Civil Court, and as such Article 137 of the Limitation Act will apply. Under this article period for filing application being to run from the date when the right to apply accrues, In the instant case the right accrued on the date on which the appointment order was passed by the High Court. There is no satisfactory explanation given by the applicant for not having moved the application within three years of that date. Right to apply having accrued on the aforesaid date could not be postponed. The appellant, as has been stated above has not given any satisfac tory ground explaining the delay in moving the said application. The learned counsel for the appellant could not give any satisfactory reply to our repeated question about the dealy in moving the application for setting aside the order dated 21-5-1975. In reply he referred to the affidavit filed by the appellant in support on the application. The affidavit filed does not give any satisfactory explanation for the delay. It is really silent on the point on which explanation of the appellant was required to be given. Whatever had been said about the-knowledge of the proceedings has been found by us to be false. The next question that arises for decision in this case was whether the pro ceedings were null and void and on that account the provisions of the Limitation Act did not apply. A proceeding may be said to be void when the Court has no jurisdiction to decide it. Jurisdiction has been defined to be a power con ferred by a Statute on a Judge to take cognizance and determine the questions according to law. All acts beyond the powers of a Court when adjudicated are known as acts done without jurisdiction. In the instant case the order making appointment of the Official Trustee under Section 10 of the Official Trustees Act was said to be void as such an appointment was prohibited by sub-section (5) of Section 7 of the Act. Sub section (5) of Section 7 provides that no Official Trustee shall accept any Trust for, religious cases or carrying on any business. Rule 3 (1) of the Official Trustees Rules 1914, which has a material bearing on this aspect reads 5 "3 (1 ). The Official Trustee shall reject any application for the acceptance of any Trust for a religious purpose unless he is satisfied that such trust will not involve him in the performance, supervision or control of any religious rites, ceremonies or duties and shall not accept any such trust without the express sanction of the Government to be obtained in each case. " It is, therefore, required to be determined in this case whether the Trust created was for religious purpose While making the order of appoint ment of the Official Trustee, the learned Judge had found it to be a Trust, to which Section 11 applies. While arriving at this finding the learned Judge inter preted the deed dated 7-6-1949 by which the Trust had been created. On the satisfaction that Section 10 applied the appointment of Official Trustee was made. In the present case, therefore, the exercise of jurisdiction making appointment of the Official Trustee depended upon the finding whether the duties required to be performed by him were religious in nature. Assuming that an error was committed in interpreting the deed by the learned Single Judge while making appointment of the Official Trustee but that error would not be an error of jurisdiction. The error pointed out by the learned counsel for the appellant did not make out a case of lack of inherent jurisdiction. Lack of inherent jurisdiction goes to the root of competence of Court to try a case and renders the order a nullity. But where, as here, the order was made by a Court which had jurisdiction to appoint an Official Trustee, the said order cannot be said to be a nullity. A Court can be said to lack inherent jurisdiction when the subject matter before it is wholly foreign to its ambit and is totally unconnected with its recognised jurisdiction. If it has power to entertain causes of a particular category or nature then it may not be said that causes belonging to that category are foreign to the jurisdiction of that Court. It cannot be said that the Court did not have seisin of the case when the subject matter belongs to the nature of its jurisdiction. Strong reliance was placed by the learned counsel for the appellant on the decision reported in John Vasica v. Janda Rubber Works Ltd. (A. I. R. 1950 Fast Punj. 188) in support of his contention. This case does not advance the appellant's case. There is no quarrel with the proposition that if an order is a nullity it is to be regarded as void having no existence to be decided on its own facts for the purposes of finding whether the order is nullity. A void judgment may either be set aside on a motion of the aggrieved or by the Court itself. But while deciding the ques tion as to whether an order passed by a Court is nullity the following observa tion in Hirdayanath v. Ram Chandra (2)must always be remembered. These observations of Asutosh Mukerji are as follows: "a judgment pronounced by a Court without jurisdiction is void. . . . . . . . Since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide wrong ly as well as rightly. . . . . . . . . . . . . . . The boundary between an error of judg ment and the usurpation of power is this, the former is reversible by an Appellate Court within a certain fixed time and is therefore only voidable the latter is an absolute nullity. " In the instant case |on the basis of the deed the learned Single Judge found that he had the jurisdiction to appoint the Official Trustee. The error, if any, may be that of interpreting the deed, but such an error did not render it a nullity and void. Moreover, we have gone through the deed and we find ourselves in com plete agreement with the view of the learned Single Judge that the Official Trustee had been appointed only for the purposes of performing secular deeds. He had not been appointed for the purposes of performing "pooja' or any such ceremonies or religious rite that his appointment could be said to have been made for religious purposes; hence the bar created by sub-section (5) of Section 7 was not applicable to the instant case. The necessary result of the discussion made above it that the order appoint ing the Official Trustee was not a nullity. As it was not a nullity, the applica tion for setting aside the said order could be made within three years of the accrual of cause of action. It was filed much beyond three years. The applica tion was, therefore, liable to be dismissed on the ground of limitation. We may note here that the decision on the question of limitation has, in fact, decided the controversy also as to whether the trust was for religious purpose or for charitable purpose. We may only mention that we have carefully gone through the Trust deed and we are definitely of the view that the dominant purpose of the deed was charitable, if not the sole. It is the dominant purpose of a document which is required to be seen for the purposes of finding out the character of the Trust created. In ascertaining the intention of the testator we must have regard to the terms of the document as a whole. On applying this rule we find that the dominant object for which the Trust was created was a charitable pur poses and not exclusively a religious purpose. That being so, the Official Trustees Act was applicable and the learned Single Judge could make his appointment under Section 10 of the said Act. The next point, which may be examined is about the right of the appellant to file the application. The application is under Section 26 of the Official Trustees Act. Section 26 reads as under: "26. Any order under this Act may be made on the application of any person beneficially interested in any Trust property or of any Trustee thereof. " On an interpretation of this provision, it would be found that an applica tion under this Act can be made by a person beneficially interested In the Trust. The words 'persons beneficially interested are wide in nature. These words; include any person, who under the terms of the Trust, has a right whether present or future, vested or contingent to income or the parts of the Trust Fund. Admittedly the appellant had no right either to receive the income accruing from the properties of the Trust or to any of the properties belonging to it. He has not been able to show any interest in the Trust property, which could make him beneficially interested in it. The determination of the extent as to whether beneficially interested in a Trust requires the construction of the deed or the in strument of the Trust. It would be necessary to find in order to hold a person to be beneficially interested as to whether the interest which the person has in the Trust Estate possess the attributes of descendibility or alienability. Since in the instant case the appellant possess none of these attributes, he cannot be said to have any beneficial interest: hence he was not entitled to file an applica tion under Section 26 of the Act which is liable to be rejected on that-ground. The counsel fell back upon the submission that as the order of Court was without jurisdiction, any one could bring the facts to its notice for the purposes of keeping the record of right. We 'have considerable doubt about the correct ness of this submission. When Section 26 of the Act confers a right only on a person having beneficial interest to file the same, we cannot hold that even a stranger would be entitled to file the same. For what we have said above, it would be found that we are not only disposing of the two preliminary ob jections raised on behalf of the respondent but also the first two submissions made by the appellant in support of this appeal. We have held above that none of the two arguments of the appellant has any substance. The only other argument that remains to be decided is about the invalidi ty of Section 10 of the Official Trustees, Act. Its validity was attacked on the basis of Articles 25 and 26 of the Constitution. The counsel urged that right to appoint an official Trustee interferes with the right of a satisfaction practice religious activities according to his conscience and manage the property in the manner liked by him. The power to appoint an Official Trustee for the purpose of management is purely a secular matter and it cannot be regarded as a religi ous practice so as to fall under Article 25 (1) or as amounting to management of the matter of religion. In Govindlal Ji Maharaj v. State of Rajasthan (A. I. R. 1963 S. C. 1638), the Supreme Court held as under: "in this connection it cannot be ignored that what is protected under Article 25 (1) and 26 (b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the Statute is essen tially and absolutely secular in character it cannot be urged that Article s 25 (1) or 26 (b) has been contravened. " Sub Article (2) read with clause (a) shows that the right guaranteed by Article 25 will not affect operation of any law and prevent the State from making any law regulating secular activities which may be associated with reli gious practice. In the instant case Section 10 confers power of appointment on the Court to appoint Official Trustees for the purposes of managing the property of the Trust. Such a power is secular in character. This provision, therefore, does not either directly or indirectly contravene Article 25 of the Constitution. The act of appointment of the Official Trustee is essentially secular. In E. R. J. Swami v State of Tamil Nadu (A. I. R. 1972-S. C, 1586) the appointment of Archaka made under Section 28 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1971 was challenged on the ground of infringement of Articles 25 and 26. The Supreme Court held that the act of appointment of an Archaka was essentially secular. It was observed by the Supreme Court that even if after the appointment an Archaka performs worship that is no ground for concluding that the appointment is either practice or a matter of religion, This case supports the submission of the learned counsel for the respondent that Section 10 of the Official Trustees Act does not interfere with the right guaranteed by Articles''25 and 26 of the Constitution and as such cannot at held to be invalid. For the reasons given above the appeal fails and is dismissed with costs. .