MAHESH TULSHAN Vs. RAJENDRA KUMAR BANKA

JUDGEMENT

(1.) This is an application under sections 73 and 74 of the Indian Trust Act, 1882. By making this application the petitioner wanted to be appointed as principal trustee of the trust created by Rai Bahadur Seth Soorajmull Jhunjhunwalla (Tulshan) by an Indenture of Settlement and Trust dated 25th August, 1887 along with other incidental prayers.

(2.) Three persons were made party respondents in the application. Fourth one wanted to be added as party respondent therein. First three respondents are male decedents wherein fourth one is female decendent. Apparently trust will be followed by the line of male decendents. Both Rajendra Kumar and Ram Awtar are the grand sons of one Sarswati Devi Banka (deceased) daughter of one Raj Bahadur Sheo Prosad Tulshan (Jhunjhunwalla) (deceased), son of the founder of the Trust. Kailash is not the family member at all. The added respondent Saroj is the sister of Jagadish Prasad Tulshan (deceased), son of second wife of one Badridas Tulshan (deceased), grandson of the founder. Therefore neither of the respondents are appointed or to be appointed by following line of male decendents. On the other hand, Mahesh Tulshan, the petitioner herein is grandson of Ganga Prasad Tulshan (deceased) son of the founder. Therefore, according to Mahesh he is the sole surviving male descendant to be appointed as principal Trustee as per the Trust Deed created by the fonder. Geneological Table being Annexure 'I' to the writ petition is as follows:- <FRM> GENEOLOGICAL TABLE Rai Bahadur Seth Soorajmull Jhunjhunwalla Tulshan (D) | ______________________________________ | | Rai Bahadur Sheoprasad Ganga Prasad Tulshan (D) Tulshan Jhunjhunwalla (D) | _____________________|_____________ | | Saraswati Debi Banka (D) Badridas Tulshan (D) Keshav Deo Tulshan (Daughter) | | _______________ | | | Keshardeo Banka (D) Arun Kumar Bimal Kumar Mahesh Tulshan Tulshan (D) Tulshan Ramesh Tulshan | (From 2nd wife) Rajesh Tulshan __________________ UmeshTulshan | | | Rajendra Kumar Ram Awtar Jagadish Prasad Banka Banka Tulshan (From 2nd wife)</FRM>

(3.) This is a public Charitable Trust. Section 1 of the Indian Trust Act, 1882 prohibits applicability of such Act into the area where Religious or Charitable endowment applies. Till the time of application being made by a female descendant, respondent No. 4 herein for the purpose of addition of the parties, this Court proceeded with the merit of the application. But as and when the other respondents took a point of maintainability of the application and to overcome the situation when the petitioner took out an application for amendment of the cause title by making an incorporation that the application is made under section 7 of the Charitable and Religious Trust Act, 1920, the dispute cropped up. All the respondents in a chorus opposed the application from making such amendment by saying that either an application is to be made under Indian Trust Act, 1882 or the same has to be made under Charitable and Religious Trust Act, 1920. Both cannot be made at a time. Moreover, the amendment by incorporation of Charitable and Religious Trust Act, 1920 will demolish the valid point of non maintainability which they have already taken. Such point of maintain-ability, as I respect, is to say that since this is a Charitable and Religious Trust the application ought to be made under Act of 1920 unlike Act, 1882. Therefore, the very foundation of the application is bad.