Kumar Kapur & Ors Vs. Ashok Khanna & Ors  Insc 271 (13 March 2007)
[Arising out of SLP (Civil) No. 8611 of 2006] S.B. SINHA, J :
Interpretation of Section 34 of the Indian Trusts Act, 1882 (for short, 'the
Act') is involved in this appeal which arises out of a judgment and order dated
06.02.2006 passed by a Division Bench of the Calcutta High Court in APOT No.
584 of 2005, affirming a judgment and order of a learned Single Judge of the
BACKGROUND FACTS :
M/s Dunlop India Ltd. (for short, 'the Company') is an existing company
within the meaning of Section 3(1)(ii) of the Companies Act, 1956.
The Company floated a Fund known as 'Dunlop Executive Staff Pension Fund'
for providing pension and annuities to the members of the executive management
staff of the Company. Clause (3) of the said deed reads as under :
"These presents shall constitute a trust upon and subject to the Rules
and to the law for the time being in force in India relating to Pension Funds
which trust irrevocable and no moneys belonging to the Fund in hand of the
trustees shall be recoverable by the Company or shall the Company have any lien
or charge of any description on the same."
I of the said deed provides for the 'Rules of Dunlop Executive Staff
"Member" has been defined in Rule 2(k) to mean :
"Member' shall mean a member of the executive staff or of the
management staff of the employers who has been admitted as a member of the Fund
in accordance with the Rules but shall not include an employee who having been
admitted as a member has subsequently retired or whose service has otherwise
been terminated by reason of dismissal, resignation, retrenchment or
Part-II of the said deed provides for administration of the Trust.
III provides for membership, part
IV provides for contributions. Rule 11(a) of the said deed reads as under :
"The employers may at their absolute discretion pay to the trustees in
respect of each member an initial contribution of such sum and in such
instalments as they may think fit in respect of the past services of a member
subject to the provision of Rule 88 of the Income Tax Rules, 1962 and to any
condition that the Central Board of Direct Taxes may think fit to specify in
The terms of said deed were amended from time to time. Although in terms of
the original deed a member would have been entitled to pension on completion of
ten years' of service, Rule 14(b) (iii) was introduced in terms whereof the
eligibility period was reduced to two years. The said provision reads as under
"14(b) (iii) In case of whole time Directors, Senior Vice Presidents
and Vice Presidents who retire at or after attaining the normal age of
retirement or on completion of the stipulated period of service/contract, a
pension shall be payable calculated as per rules 14(a). The pension so
calculated shall not however be less than 50% of his last drawn salary nor
shall it exceed 100% of such salary PROVIDED that in the event of early
separation from the services of the Company, a pension may be granted at the
sole discretion of the Company calculated at such rate as may be decided by the
Provided further in the event of such employee leaving the service of the
Company after completion of two years of service with mutual consent and does
not have any adverse records of his performance shall be paid a monthly pension
which shall be not less than 50% of his last drawn salary nor shall it exceed
100% of such salary."
The said amendment was made with retrospective effect. However, it was
sought to be deleted by a deed of variation dated 25.09.2000 from 01.04.1997,
which again in terms of another deed of variation dated 28.03.2001 was sought
to be given a retrospective effect from 01.04.1995.
Respondent No. 3 herein was the Managing Director of the Company.
Admittedly, he has filed a suit for realization of an amount of pension
quantified at Rs.45 lacs. Two other suits by two other members of the Fund are
also admittedly pending.
The Company became sick. It was declared as such by the Board of Industrial
Financial Reconstruction on or about 22.01.1988.
Allegedly, three other funds were created by the Company in the year 2001,
known as (i) 'Dunlop Administrative Executive Staff Pension Fund', (ii) 'Dunlop
Sahagunj Executive Staff Pension Fund', and (iii) Dunlop Ambattur Executive
Staff Pension Fund'. The details whereof or the purpose for which the same were
constituted is not known.
An application was filed by the trustees of the said trust before the High
Court of Calcutta purported to be under Section 34 of the Act, alleging, inter
alia, that the purpose of the trust has been completely fulfilled and/or trust
has been completely executed without exhaustion of the trust property to the
extent of Rs.3,99,55,682/-. In the said application, inter alia, the following
prayer was made :
"a) Appropriate direction and/or advise and/or opinion be given by this
Hon'ble Court with regard to the sum of Rs. 20,83,95,690/- and accrued interest
lying in Special Deposit Account No. 3/76."
In the said proceeding, only Respondent No.1 herein was made a party in a
representative capacity. It was contended that out of 186 employees who were
eligible to receive pension fund, 140 employees consented that the surplus
amount be refunded to the Company. In the said proceeding, an application
seeking leave was filed under Order 1 Rule 8 of the Code of Civil Procedure,
which was allowed by an order dated 19.10.2001. Respondent No.3 herein filed an
application for getting himself impleaded as a party which was allowed. By a
judgment and order dated 23.12.2004, a learned Single Judge of the Calcutta
High Court while holding that the said application under Section 34 of the Act
was maintainable, opined that the payment of pension was to be made not only to
the existing members but also to the widow and dependents in terms of the
It was held that only because in terms of the advertisement issued in two
newspapers, namely, a Bengali Daily 'Aaj Kal' and an English Daily 'Financial
Express', consent of all the members could not be held to have been impliedly
obtained only because numerous dependents had not appeared. Inter alia, on the
aforementioned premise, the application was dismissed.
On an intra-court appeal, a Division Bench of the said Court by reason of
the impugned judgment although opining that a Letters Patent appeal was not
maintainable, went into the merit of the matter and dismissed the same, holding
"After analysing those clauses in our opinion, the trust shall be
irrevocable one and no moneys belonging to the funds in the hands of the
trustees shall be recoverable by the company nor shall the company have any
lien or charge of any description to the same. Therefore, we are sure that the
purpose of the trust exists and/or remains valid until the last surviving
employees receive its benefit out of the trust fund and furthermore, under
Clause 3 of the said Trust Deed funds lying in the hands of the said trustees
are not coverable by the company nor the company shall have any lien or charge
of any description on the said trust fund. Therefore, we do not have any
hesitation to hold that no opinion can be expressed by the Court that the
amount so lying in the hands of the trustees can be recoverable by the company
or may be transferred in any manner to the company. Therefore, we are not in a
position to accept the contention of Mr. Sarkar that during the financial
stringency they shall have the right to utilize the said fund and the amount
lying in the said trust fund can be transferred to the company for meeting its
liabilities. After scrutinizing the Clauses of the said Trust Deed we have come
to the conclusion that the purpose of the trust exists and remains valid until
the last surviving employees receive its benefits out of the said trust fund.
We do not have any hesitation also to express our opinion as His Lordship
expressed in His Lordship's decision that the trust exists and we also have to
accept the contention of Learned counsel appearing on behalf of the respondent
in the instant case that the instance case is squarely covered under the
Illustration (b) of Section 56 of the Indian Trust Act and the trustees are
bound to fulfil the purpose of the trust and to obey the directors of the
author of the trust, except if any modification is made by consent of all the
beneficiaries, being competent to contact. It appears to us that in the guise
of getting an opinion from the court, the company thought it fit to extinguish
the trust in question and the amount lying in the hands of the trustees in
respect of the said fund to have a lien over the same to utilize the same which
is totally barred under Clause 3 of the said Trust Deed"
Mr.R.F. Nariman, the learned Senior Counsel appearing on behalf of the
appellants, principally raised the following contentions in support of this
(i) The power of the principal Civil Court of original jurisdiction being
not only limited to opinion or advice, but also to issue directions, the High
Court wrongly refused to exercise its jurisdiction, although Section 83 of the
Act was squarely attracted.
(ii) The expression 'principal Civil Court of original jurisdiction'
contained in Section 34 would also attract the principles of res judicata.
(iii) Such direction can be issued, inter alia, in terms of Section 83 of
the Act, as it would come within the purview of the term 'administration of
(iv) The terminology 'detail, difficulty or importance' contained in Section
34 of the Act refers to the power of the court for summary disposal and not for
exercising its discretionary jurisdiction of the court.
(v) Such opinion, advice or direction if issued would be a judgment within
the meaning of Clause 15 of the Letters Patent of the Calcutta High Court and,
thus, a Letters Patent appeal would be maintainable.
(v) Respondent No.3 being not a member of the Fund had no locus standi to
main the application.
Mr. Rakesh Dwivedi, the learned Senior Counsel appearing on behalf of
Respondent No.3, on the other hand, would submit :
(i) Operation of Section 34 being related to the 'management' or
'administration' of the trust property; matters which come within the purview
of extinction of the trust as contained in Chapters VIII of the Act, would not
come with the purview thereof.
(ii) Section 34 has a limited application keeping in view the exclusionary
clause contained in the expression "other than questions of detail,
difficulty or importance, not proper in the opinion of the court for summary
disposal" and, thus, the courts below rightly refused to exercise their
jurisdiction in the matter.
(iii) The learned Single Judge as also the Division Bench of the High Court
having found difficulties in the matter as also in view of the importance of
the question having refused to exercise the discretionary jurisdiction, this
Court should not interfere therewith.
(iv) The term 'opinion, advice or direction' would not confer a jurisdiction
to finally decide the rights of the persons interested in the trust.
RELEVANT STATUTORY PROVISIONS :
Sections 11, 56, 77 and 83, which are relevant for the purpose of this
appeal, read as under :
"11. Trustee to execute trust.- The trustees is bound to fulfil the
purpose of the trust, and to obey the directions of the author of the trust
given at the time of its creation, except as modified by the consent of all the
beneficiaries being competent to contract.
Where the beneficiary is incompetent to contract, his consent may, for the
purposes of this section, be given by a principal civil court of original
Nothing in this section shall be deemed to require a trustee to obey any
direction when to do so would be impracticable, illegal or manifestly injurious
to the beneficiaries.
Explanation. - Unless a contrary intention be expressed, the purpose of a
trust for the payment of debts shall be deemed to be (a) to pay only the debts
of the author of the trust existing and recoverable at the date of the
instrument of trust, or, when such instrument is a will, at the date of his
death, and (b) in the case of debts not bearing interest, to make such payment
"56. Right to specific execution. The beneficiary is entitled to have
the intention of the author of the trust specifically executed to the extent of
the beneficiary's interests.
Right to transfer of possession. And, where there is only one beneficiary
and he is competent to contract, or where there are several beneficiaries and
they are competent to contract and all of one mind, he or they may require the
trustee to transfer the trust-property to him or them or to such person as he
or they may direct.
When property has been transferred to bequeathed for the benefit of a
married woman, so that she shall not have power to deprive herself of her
beneficial interest, nothing in the second clause of this section applies to
such property during her marriage."
"77.-Trust how extinguished. A trust is extinguished (a) When its
purpose is completely fulfilled; or (b) When its purpose becomes unlawful; or
(c) When the fulfillment of its purpose becomes impossible by destruction of
the trust-property or otherwise;
or (d) When the trust, being revocable, is expressly revoked."
"83. Trust incapable of execution or executed without exhausting
trust-property. Where a trust is incapable of being executed, or where the
trust is completely executed without exhausting the trust-property, the
trustee, in the absence of a direction to the contrary, must hold the trust-
property, or so much thereof as is unexhausted, for the benefit of the author
of the trust or his legal representative."
APPLICATION OF LAW :
The jurisdiction of the court under Section 34 admittedly is confined to
opinion, advice or direction. An application would be maintainable on any
present questions. Such questions must arise "respecting the management or
administration of the trust property". The questions should not be of any
'detail, difficulty or importance or otherwise not proper in the opinion of the
court for summary disposal'.
Copy of the application must be served upon the persons interested in the
application. If an opinion is rendered, or advice is given, or a direction is
issued, the same shall be deemed, so far the trustee is concerned, in regard to
his own responsibility to have discharged his duty as such trustee in the
subject-matter of the application.
It may be that such an application may be filed without instituting a suit
but maintainability of such an application would mainly depend upon the nature
and purport thereof. Merely an option has been conferred on a trustee to file
either a suit or to move the court for its opinion, advice or direction in terms
of Section 34 of the Act. Such an option can be exercised only when recourse to
both the remedies are available.
We may proceed on the basis that the jurisdiction of the court is not only
confined to opinion or advice but also extends to issuance of direction, but
such opinion rendered, or advice given or direction issued only to a trustee.
Consequence of issuance of such a direction is also stated in paragraph 3 of
Section 34 in terms whereof a legal fiction is created by reason whereof the
trustee would be deemed to have discharged his obligation in regard to his own
responsibility in the subject-matter of the application. It does not envisage
an adjudication. It does not ordinarily envisage determination of the right,
title or interest of a member of the trust or a beneficiary in relation to the
trust property, although such a question may have to be incidentally dealt
The provisions of Section 34 of the Act must be given its literal meaning.
The court cannot exercise a jurisdiction which is not vested in it.
A court can exercise jurisdiction, provided it is vested therewith. An order
without jurisdiction over the subject-matter would render the decision a
Construction of the aforementioned provision which is in pari materia with
Section 10(1) of the Official Trustees Act, 1930 came up for consideration
before this Court in Official Trustee, West Bengal and Others v. Sachindra Nath
Chatterjee and Another (1969) 3 SCR 92 : AIR 1969 SC 823]. Therein, it was
clearly held that in terms of Section 33 of the Act, the rate of interest
cannot be directed to be altered, stating :
"21. It was then said that the order in question could have been made
by Ramfry, J., in the exercise of his inherent powers as a Judge sitting on the
original side of the Calcutta High Court. It was argued that a Judge sitting on
the original side of the High Court of Judicature at Calcutta has all the
powers of a Chancery Judge in England as that power has been conferred on him
by the Letters Patent granted to that High Court. We shall assume it to be so.
We may note that the settler did not invoke the inherent jurisdiction of the
High Court nor did the Judge purport to exercise that power. But, still, that
cannot invalidate the order made if the Court had the inherent jurisdiction to
make that order. Hence the real question is had he that inherent jurisdiction?
Chapter XIII of the Calcutta High Court Rules prescribes what orders can be
obtained in an originating summons proceedings. The jurisdiction of the Judge
acting under that Chapter is a summary jurisdiction. Rule 1 of that Chapter
empowers the Judge to entertain an application in respect of matters enumerated
in clauses (a) to (g) of that rule. Admittedly clauses (a), (b), (f) and (g)
are not relevant for our present purpose. Under clause (c) the Court could only
decide about furnishing of any particular accounts by trustees and vouching
(where necessary) of such accounts. Under cl. (c) it could direct the trustees
to pay into Court any monies in his hands and under clause (e) direct him to
file an account and vouch the same to do or abstain from doing any particular
act in his character as a trustee. The orders under Chapter XIII are made in
chambers. As mentioned earlier the proceedings under that Chapter are summary
proceedings. No rule in that Chapter was brought to our notice under which the
order in question could have been made.
xxx xxx xxx
25. It will be noticed that the powers given under those four heads are
those relating to management and administration of trust property. That power
is similar to the power conferred in Courts by Sec. 34 of the Trusts Act and S.
43 of the Trustees and Mortgagees Powers Act, 1866. In fact in this country we
have condified the very powers that were exercised by the Chancery Courts in
England under their equitable jurisdiction. The Court of Appeal in Chapman's
case, 1953-1 Ch 218 Evershed M.R. and Romer . JJ., Denning L. J. dissenting
stated the law on the point thus:
The inherent jurisdiction of the Court of Chancery is of a limited
character. It is a jurisdiction to confer upon the trustee, quoad items of
trust property vested in them, administrative powers to be exercised by them
where a situation has arisen in regard to the property creating what may be
fairly called an "emergency". The inherent jurisdiction does not
extend to sanctioning generally the modification or remoulding of the
beneficial trusts of a settlement.
xxx xxx xxx
27. From whatever angle we may examine the validity of the order made by
Ramfry, J., it appears clear to us, that the said order was outside the
jurisdiction of the learned Judge. It was not merely a wrong order, or an
illegal order, it was an order which he had no competence to make. It is not
merely an order that he should have not passed but it is an order that he could
not have passed and therefore a void order."
Section 34 occurs in Chapter IV titled "Of the rights and powers of
trustees" beginning from Section 31 relating to 'right to title deed' to
Section 45 relating to "Suspension of trustee's posers by decree'. Chapter
VIII, on the other hand, provides for extinction of trusts. Chapter IX relates
to matters pertaining to certain obligations in the nature of trusts.
The right of a member of a trust to receive pension poses a difficult
question. It may also pose a question of importance, keeping in view the fact
that by reason thereof, the obligation of the trustee would come to an end. It
is one thing to say that an advice, opinion or direction can be made respecting
the administration of the trust; but what that means would evidently depend
upon the terms of the trust deed.
We have noticed hereinbefore that Part II of the trust deed lays down the
mode and manner in which the trust properties are to be administered. It does
not lay down a right on the part of the trustee to put an end his right to get
himself discharged from his obligation. If for some reason or the other, it is
contended by the trustee that the trust stand extinguished, any remedy in
respect thereof must be found within Chapter VIII of the Act and not otherwise.
Similar provisions exist in the Official Trustees Act, 1930, Section 302 of
Succession Act, 1925 and Section 7 of the Charitable and Religious Trusts
The courts of India have all along held that their jurisdiction, in this
behalf, is limited. In any event, it is for the court concerned to arrive at an
opinion as to whether the questions posed are matters of detail, difficulty or
importance. Summary jurisdiction would not be exercised in the event the
exclusionary clause comes into operation.
We will assume for the time being that the application under Section 34 of
the Act was maintainable. The court, however, keeping in view the number of
persons who would be entitled to oppose the prayer of extinction of trust,
would decline to exercise its jurisdiction. Interpretation of the trust deed
furthermore is a question of importance. It is also a matter of detail in the
proceeding as to whether the trustees have been able to discharge their entire
The Division Bench of the High Court, as noticed hereinbefore, opined that
the trust is an irrevocable one. It may or may not be correct; but the question
posed admittedly is a difficult one and if for the said purpose it had refused
to exercise its discretionary jurisdiction, in our opinion, no fault can be
We have also some difficulty in appreciating the submissions of Mr.
Nariman that all the members of the trust must be deemed to have consented
to the extinction of the trust on the ground that the purpose of the trust had
Admittedly, three suits are pending. It is, thus, not correct to contend
that all the beneficiaries of the trust have been paid off. The power of the
Company to make rectification of the terms and conditions of the trust vis-`-
vis the power of the trustees to revoke the same with retrospective effect is a
matter which is pending consideration in a court of law. No final opinion can
be rendered in that behalf.
If the terms and conditions of the trust are to remain in operation in view
of clause 3 of the Deed of Trust, it is really difficult for us to comprehend
as to why three more trusts were created. The purpose for which the same had
been created and the trustees had been asked by the Company to pay back the
balance amount to the Company for its rehabilitation is a tell tale one. Bona
fide of the trustees in moving such an application is suspect. The trustees intended
to pay a huge sum of Rs.20 crores to the Company for its revival. Once it is
revived, the employees who are existing would continue and new employees may
also be appointed. It is, therefore, difficult for us to comprehend the stand
of the trustees that as the Company had been declared sick by the BIFR, the
same would lead to an irresistible conclusion that no further employee would be
appointed. The contention of the trustees appears to be fallacious. Once the
Company had taken recourse to the provisions of the Sick Industrial
Companies (Special Provisions) Act,
1985, an operating agency must have been appointed and even without aid and
assistance of all the trustees scheme(s) might have been framed by the
operating agency for revival of the Company. How and in what manner the BIFR or
for that matter AIFR intended to proceed the matter is one which falls within the
jurisdiction of the authorities created under the SICA. The Civil Court will
have no say in the matter.
Submission of the learned counsel that in this case Section 83 is squarely
attracted cannot be appreciated for more than one reason. Firstly, because it
is a seriously disputed question of fact. Secondly, the court exercising its
summary jurisdiction for the purpose of giving advice, opinion or direction
cannot finally determine the rights and obligations of the trustees vis-`-vis
the State on the one hand and the beneficiary thereof on the other. Thirdly,
even if a few persons opposed extinction of the trust, the same itself should
be treated to be sufficient for the court to refuse to exercise its summary
jurisdiction under Section 34 of the Act.
Strong reliance has been placed by Mr. Nariman on Prince Muffakham Jah
Bahadur and Others v. H.E.H. Nawab Mir Barkat Ali Khan Bahadur Prince Mukarram
Jah and Others [(AIR 1989 AP 68]. Therein, a Division Bench of the Andhra
Pradesh High Court categorically held that there was no opposition. It was
found as of fact that the First Respondent would stand to gain if the trust is
dissolved which would be beneficial to all the trustees. The court was in the
fact situation obtaining therein was not required to go into the question of
maintainability of the application under Section 34 of the Act. It is, however,
interesting to note that in Para 15, it was noticed :
"At Page 514 of Underhill's Law of Trusts Trustee, Twelfth Edition,
Art. 68 runs as follows :- "If there is only one beneficiary, or if there
are several (whether entitled concurrently or successively) and they are all of
one mind, and he or they are not under any disability (a), the specific
performance of the trust may be arrested, and the rust modified or extinguished
by him or them without reference to the wishes of the settler or the
We think that approval and arrangement is a matter of judicial discretion
depending upon the facts of each case. The Court must be satified that each
beneficiary is getting a substantial advantage. We do not think that there can
be any objection for an arrangement when its object is to avoid fiscal
The Andhra Pradesh High Court categorically opined that whether approval and
arrangement should be granted or not is a matter of judicial discretion
depending upon the facts of each case and the court must be satisfied that each
beneficiary is getting a substantial advantage.
Unfortunately, attention of the High Court was not drawn to this Court's
decision in Sachindra Nath Chatterjee (supra). It is, therefore, not an
authority for the proposition that such a direction can be issued in all
Reliance has also been placed on Sahebzadi Amina Marzia v. Syed Mohd.
Hussain and Others [AIR 1981 AP 340], wherein a direction was issued to sell a
portion of the property, having regard to the wealth tax liability which could
not be made otherwise. The same was found to be in the interest of the
beneficiaries as the said jewelleries were not to be of much use.
We may, however, notice that in Hasan Bin Mubarak v. Chief Judge, City Civil
Court, Hyderabad and Others [AIR 1999 AP 11], the same High Court held :
"Section 34 of the Act contemplates only a summary disposal on
non-controversial issues. The mental condition of a person being an important
personal problem, the Court cannot dispose of the same in a summary manner.
What the Court below has done was to examine 3rd respondent, who is alleged to
be an insane person and give the opinion on the basis of her statement.
Though Ex.R-1, certificate, alleged to have been given by a psychiatrist,
was marked, the Court made no effort to examine the said doctor. Obviously,
this could not have been done because the matter has to be disposed of in a
summary manner. Thus, it is evident that the advice that was sought for by the
trustee required a determination on contentious facts and the jurisdiction of
the Court under section 34 being only in the nature of giving guidelines or
directions without entering into the merits, the application ought not to have
been entertained by the Court. The trustee might have got a valid and
satisfactory opinion had he approached a qualified medical man or the Court in
a properly instituted suit.
23. In Avoch Thevar case (supra) following the decision in Armugan Chetty
vs. Raja Jagaveera ILR 28 Madras 444, it was clearly held that while providing
the trustees a right to apply to the Court for opinion to the Management and
the Members, Section 34 embodied at the same time, a limitation governing the
questions to be asked viz. that there should not be hypothetical and any
questions of details or difficulty or importance, not proper in the opinion of
the Court for summary disposal. None of the passages quoted or citations relied
upon by the learned counsel for the respondents came to his assistance."
Yet again in Krishen Kumar Khosa v. Krishen Lal and Others [AIR 1979 J&K
13], it was held :
"From a bare perusal of the petition it becomes obvious that the
petitioner is not in possession of the Trust property but is desirous of
getting himself declared a trustee in opposition to respondent No. 1 who
according to him, has usurped his functions to which he was entitled to under
the Guru Jeer's alleged will.
Obviously the petition was not for seeking any advice, opinion or direction
from the court. It raised questions of difficulty detail and of importance
which not be disposed of in summary proceedings as one at hand. Mr. Gupta has
vehemently argued that he was entitled to seek the direction from the court
which would according to him include even a declaration to the effect that it
was in fact the petitioner who was the trustee and not respondent No.1. He has
cited some authorities such as AIR 1953 Nag 89 (FB), AIR 1965 SC 342, and AIR
1966 SC 81 in support of his contention that the expression
means and includes an order of the court and does not merely mean an advice
or opinion. On a perusal of these judgments I am however, of the view that the
expression 'direction' as used in the Trusts Act has entirely a different
meaning than the meaning that may have been given to it in various other
enactments discussed in the above said judgments. Though Mr. Gupta has remarked
the interpretation laid down on the expression "opinion, advice, and direction"
appearing in S. 34 of the Trusts Act in Muhmmad Hashim Gazdar, AIR 1945 Sind 81
(FB) and AIR 1934 Oudh 118 (2) being the interpretation laid down long ago and
therefore not applicable to the situation prevailing in 1978, yet I am of the view
that the meaning of the expression used in Sec. 34 of the Trusts Act having
been directly at issue in the said judgments, the interpretation placed in the
said judgments, on this expression was not only appropriate and correct at the
time of the passing of the said judgments but still continue to be the only
interpretation that may possibly be given. In AIR 1945 Sind 81 (supra) it has
been laid down as follows :
"The words "opinion, advice or direction" in Sec. 34 Trusts
Act, must be read together as meaning nothing more than guidance. Under S.
34 the Court exercised what may be called its consultative jurisdiction,
giving guidance to a trustee who presumably asks for it, because he wants it
and intends to follow it, Section 34 is intended to enable a trustee to obtain
the Court's guidance in suitable matters for his protection.
The advice, opinion or direction given under Sec.
34 is not an order binding on parties and disobedience to it does not
involve committal for contempt."
Strong reliance has been place on Smt. Nilima Ghosh and Another v.
Prakriti Bhusan Mitter [AIR 1982 Cal. 14], wherein it was categorically held
that when an application was filed under Section 90 of the Code of Civil
Procedure, the court would be justified in refusing to answer the question as
the matter should have been referred to court specified in Section 34 of the
Act, stating the said decision was rendered, inter alia, on the premise that
the court of principal Civil Court is a court of superior jurisdiction to that
of a Subordinate Judge. We need not pronounce on the correctness or otherwise
of the said decision; but we may notice that such observations were made having
regard to the development and preservation of the trust property in question
and not for any other purpose.
Whereas a direction to sell a portion of the trust property may be issued
for the benefit of the trust as also the beneficiary thereof and not for
preservation of the property, in our opinion, the same test cannot be applied
for the purpose of obtaining in truth and substance an order of extinction of
the trust. The two reliefs are absolutely different.
We, therefore, are of the opinion that no case has been made out for our
interference with the impugned judgment. We need not make our comments with
regard to the maintainability of the Letters Patent appeal, as Mr. Dwivedi
conceded that such an appeal would be maintainable.
It is well-settled that if the jurisdiction of a court in relation to the
subject-matter thereof is limited, any decision rendered by it would be a
nullity. In such an event, even the principle of res judicata will have no
application [See Official Trustee of West Bengal v. Stephen Court Ltd. - 2006
(14) SCALE 285 and Harshad Chiman Lal Modi v. DLF Univesal Ltd.
and Another (2005) 7 SCC 791] It is interesting to note that in Sachindra
Nath Chatterjee (supra), Hegde, J. was clearly of the opinion that where the
relief cannot be granted keeping in view the limited jurisdiction of the court,
in relation thereto the court will have no jurisdiction. But it is of some
significance that the jurisdiction of the court must be determined in a case of
this nature having to the purport and object for which such jurisdiction is
conferred. A wider jurisdiction thereunder is not contemplated.
It is also well-settled that when a court refuses to exercise its
discretionary jurisdiction, normally an appellate court shall not interfere
therewith. [See Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa and Others
(2003) 10 SCC 390].
Article 142 of the Constitution of India in a case of this nature may not be
invoked, particularly when this Court is exercising its appellate jurisdiction.
If the High Court had no jurisdiction to entertain the application and in any
event having regard to the fact that both the learned Single Judge as also the
Division Bench of the High Court had not exercised their discretionary
jurisdiction, in my opinion, it is not a case where jurisdiction under Article
142 of the Constitution of India should be invoked particularly in view of the
fact that the appellant is not remediless. It can file a suit. It can take
recourse to other remedies which are available in law.
The appeal, therefore, being devoid of any merit is dismissed. In the facts
and circumstances, however, there shall be no order as to costs.