INDRAKUMAR CHIRANJILAL KHEMKA Vs. RAJKUMARI RAMNATH HARLALKA

JUDGEMENT

(1.) THE petitioners who are the original plaintiffs have filed this Revision Application impugning the Judgment and order dated 27th August, 1993 passed by the Bombay City Civil Court in Notice of Motion No.5343 of 1989 in S.C. Suit No.6680 of 1988. The learned Court at the time of deciding the Motion framed 3 issues, amongst them was the following issue:

(2.) THE plaintiff-petitioner had filed the suit against the respondents-defendants for a negative declaration that the Defendants are not the trustees of Bhagwatiprasad Khetan Trust having its registered office at Khetan Bhavan, 198, J.Tata Road, Bombay-400 020. In the body of the plaint the petitioners had averred that for the purpose of holding a meeting of the Trust and/or passing resolutions certain procedure has to be followed including giving of notice. Such a procedure has not been followed and inspite of that the Respondents are purporting to act on two Resolutions (i) dated 30th January 1979 and (ii) dated 11th August, 1984, based on which they are purporting to act as trustees and in fact have now moved the Charity Commissioner for effecting changes in the register maintained by the Charity Commissioner in so far as the names of the Trustees are concerned. The Trust was initially registered on 30th March, 1950 for a period of 7 years. Thereafter on 30th March, 1957 it was renewed for a further period of 14 years and subsequently on 28th February, 1970 it was registered as a permanent Trust.

(3.) AT the time of hearing of the petition Mr. Dhakephalkar, learned Counsel appearing for the Petitioners contended that the Court erred in holding that the Court had no jurisdiction. It is his contention that what he had prayed for was a negative declaration that the Respondents herein had no right to claim as trustees. It is his contention that unless the issue is expressly barred, the Civil Court would have jurisdiction under Section 9 of the Civil Procedure Code, 1908 to decide all questions. It is his contention that this issue namely the question as to whether the person was not a trustee could be looked into by the Civil Court. The learned Counsel for the Petitioners invited my attention to the provisions of Sections 17, 18, 19, 20, 21 and 22 of the said Act. The learned Counsel specifically drew my attention to the provisions of Section 18(5)(iii) in support of his submissions. The learned counsel relied upon a Full Bench judgment of this Court the case of Keki Pestonji Jamadar and another V. Khodadad Merwan Irani and others reported in A.I.R. 1973 Bombay, 130. The learned Counsel relies on the said judgment for the purpose of contending that the Full Bench was considering the issue as to whether certain properties belonged to the Trust and while considering that issue the Full Bench has held that the jurisdiction of the Civil Court is not ousted. In this context the learned counsel draws my attention to the provisions of Section 18(5)(iii) to point out that for the purpose of registration of Public Trust the Application should also contain the list of the moveable and immovable trust property and such descriptions and particulars as may be sufficient for the identification thereof. He contends that similarly, under section 18(5)(i) the names and addresses of the trustees and the manager have to be given. It is his contention that the same interpretation given by the Full Bench in so far as the issue regarding whether the property belongs to the Trust or not should also be given in the matter of whether the names of the trustees.