CHAMELI BIBI Vs. KANHAIYALAL AGARWALLA

JUDGEMENT

(1.) The petitioner Prem Kumar Agarwal is one of the daughters of one Jiwandas Agarwal, since deceased. Jiwandas Agarwal was one of the two trustees in respect of the trust created by one Babulal Agarwalla, deceased, by his will dated August 6, 1873 whereby he created a trust for various religious and charitable purposes including the construction of a temple at Vrindaban and a Dharamshala at Calcutta, Jiwandas, one of the joint trustees died a few months back. Since then disputes and differences arose by and between the heirs of Jiwandas, being his three daughters. The eldest son-in-law of Jiwandas by the name of Dhanpaldas Gupta, at all material time, had been and still is the other trustee in respect of the said trust for religious and charitable purposes.

(2.) In this application Prem Kumari wants to be added as a party to this suit on the ground that she is the beneficiary under the scheme framed in 1944 whereunder the said Jiwandas was acting as one of the trustees. Under the provisions of the said Scheme of 1944 after the death of Jiwandas a sum of Rs. 250/- would be payable from out of the trust estate to each of the three daughters of Jiwandass. According to her she is entitled to apply in this suit and under the said scheme, by virtue of the clause in the final decree whereby liberty was given to the parties to apply. According to her the suit is still alive for the purpose of carrying out of the said trust,

(3.) Mr. Bhabra appearing on behalf of Dhanpaldas Gupta takes a preliminary point and argues that the petitioner Prem Kumari cannot be substituted in the place and stead of Jiwandass. The said place has already been filled up by appointing another trustee viz., Shyama Saran Agarwal as per order dated August 14, 1972. Accordingly, her application to be added as a party is misconceived inasmuch as the same is not warranted either by the said scheme or by the nature of the case. According to the learned counsel there is no power reserved in the scheme itself whereby the scheme can be modified in the way it is being prayed for. Such a clause is absent in the scheme. The only persons in whom the right to make any application under the said scheme has been reserved are the two trustees and no outsider has been given any liberty or power to make an application under the scheme. Mr. Bhabra contends that under the scheme Prem Kumari has no right to apply. The only right she has got in the scheme Is to get Rs. 250/- per month. If the monthly allowance is not paid to her, she will have the cause of action against the trustees and she will be able to enforce her right by filing a suit; but in this case, the trustees are not disowning that obligation which is cast on them by the said scheme of 1944 -- Had there been such a situation she could have filed a suit for recovery of that amount. There is no allegation before this Court that any amount remains unpaid to the said daughters of Jiwandass. The said total sum of Rs. 750/- is payable by the trustees in the same way as so many other expenses are payable by them every month but because of that provision they do not-become the beneficiaries under the said scheme. She may be the descendant of Jiwandass but that does not make her a beneficiary. She does not claim to be a bencficiary under the trust created by the will of Babulal. Her position is not that of the plaintiff Chameli Bibi who resides in the temple premises in Vrindaban and hence as the eldest female member of the family of Babulal, Chameli Bibi can claim to be a beneficiary under his will; but that is not the case with Prem Kumari. Accordingly, Prem Kumari has no interest under the said scheme and no liberty has been given to enable her to apply under the scheme.