*COUNTER CLAIM OF THE TRUST

IN THE COURT OF THE DISTRICT JUDGE OF HOOGHLY

OTHER SUIT NO.15/2006

PRESENT: SHRI H. SINGH, DISTRICT JUDGE, HOOGHLY.

Tuesday, the 21st day of July, 2009

• 1. Ram Chandra Dalui

  2. Paresh Samanta ........ ........ ......... ........ ....... Plaintiffs

     1. • • • • 1. Versus

Satischandra Roy Trust Estate of Dihi Bagan, P.S. Arambagh, District: Hooghly, represented by the Members of Managing Committee:

• 1. Sub-Divisional Officer, Arambagh

  2. Brojo Gopal Chakraborty & 4 others ....... ........ ......... Defendants.

This Suit coming on hearing on for final hearing on 30.11.2007, 17.01.2008, 9.06.2008,

21.11.2008, 24.04.2004 and 13.07.2009 in presence of

Shri Keshab Lal Mukherjee ...... ...... ..... ....... Advocate for the Plaintiffs

Smt. Suddha Sen, ...... ...... ..... ....... Advocate for the Defendants.

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J U D G E M E N T

The plaintiffs Ram Chandra Dalui and Paresh Samanta on 28.6.2006 filed this suit u/S.92 of the C.P. Code read with Secs. 34 & 36 of the Trust Act praying for a decree of permanent injunction against the defendants No.1 to 6 who are the members of the Managing Committee of the trust called, “Satish Chandra Roy Trust Estate of Dihibagnan” praying for a decree of declaration that the defendants have no authority to transfer the property described in schedule A & B, permanent injunction against the defendants in respect of the aforesaid properties and praying for a declaration of framing up of scheme, cost of the suit etc. etc. on the grounds that the property described in A Schedule is within the local jurisdiction of this Court. They alleged that the suit property originally belonged to Satish Chandra Roy, a pious, religious and benevolent Hindu governed by Dayabhaga School of Hindu Law and that on 14.07.1950 Satish Chandra Roy executed a deed of trust, which is annexed with the plaint as annexure-I. They alleged that the plaintiffs are persons interested in the trust and are its beneficiaries. According to them, as per the terms of the trust deed executed by the aforesaid author, the properties described in the schedule are vested in the trust and a part of the properties of the founder were earmarked for worship of the family deity, apart of the properties were earmarked for charitable dispensary, a part of the properties were earmarked for educational institution and provision was made for appropriation of usufructs for religious, charitable and educational purpose. They alleged that the founder constituted himself as a Managing Trustee during life time and appointed person for appointment of next trustee. The plaintiffs alleged that out of the funds of Satish Chandra Roy Trust Estate a primary health cent re viz. Dihibagnan Primary Health Centre has been established in village Dihibagnan and plaintiffs as well as members of their families have to go in the said health centre for treatment. They further alleged that out of the funds of the said trust, a higher secondary school, viz. Dihibagnan K.B. Roy Higher Secondary School was set up and the plaintiffs took their education in the said school and now their grandson and granddaughters are studying there. They alleged that the defendants are the present trustees of the said trust and defendants Nos.1 & 2 are Ex-Officio Chairman and Managing Trustee of the trust estate. They alleged that the way they have been carrying out the works of trustees is far from being beneficiary to the trust estate in general and the people of village Dihibagnan in particular and they alleged that it is doubtful whether the defendants maintained any accounts. They alleged that the defendants have not been collecting the usufructs of the properties for better appropriation of the sale proceeds of the usufructs for the purpose of the trust. They alleged that they came to learn that the defendants have passed a resolution for transfer of the properties described in A & B Schedule and having been making contacts with the intending purchasers and the deal arrived at, according to them, is far from fair. They alleged that the defendants have not given any tender for sale of the properties. That they did not make any widespread circulation of the transfer that would have made the proposed transfer transparent. They alleged that on 8.3.2006 the plaintiffs accosted the defendants Nos.2 to 6 and requested them to explain their conduct, which they flatly refused to give any explanation to the plaintiffs, and as such they have been compelled to file this suit.

The suit was contested by the defendants who filed a written statement and counter-claim on 27.09.2006 wherein they alleged that the suit is not maintainable, that the suit is harassive, concocted, frivolous and baseless. They alleged that the suit is barred by limitation, principles of estoppal, waiver and acquiescence. They, however, admitted statements made in paragraphs 1 to 4 of the plaint but denied that the plaintiffs are interested in the trust, or that as per their interest their confidence was accepted. They alleged that the Trust has a meager income but a huge amount of expenses for the maintenance of the hospital and school, it has to depend mainly on donations from local inhabitants and the trustees because of the local people. Some of the tenants pay very small amount ranging from Rs.12/- to Rs.18/- per month, while some are defaulter and others deposit the amount before the House Rent Controller, while the others have trespassed therein. They alleged that plaintiffs have been disturbing the collections from local inhabitants and for that reason the trustees have been compelled to take the resolution for sale of the properties situated at Raja Denendra Street to a private agency who are willing to purchase with the tenants and the illegal occupiers at a handsome amount. Furthermore, the agricultural land situated at Mouja Dihibagnan yield very poor crops and it is very hard to obtain the usufructs from the Bhag cultivator, who have been cultivating the land since the time of the Founder of the Trust and therefore been paying small amount of share of the usufructs. They asserted that they have been carrying out the management of the estate successfully as intended by the Founder. They admitted the pleadings made by the plaintiffs in paragraph 8 & 9 of the plaint. They denied that the work carried out by the Trustees is far from beneficiary to the Trust and asserted that they do maintain regular accounts and it is inspected by the Trustees and the members at intervals. Besides they organise regular meetings and for different work undertaken, resolutions are passed. The defendants alleged that it is true that they have passed a resolution for transfer of the suit properties and have been trying to contact with the intending purchasers, but the apprehension of the plaintiffs with the deal would be far from fair, is concocted and baseless and eyewash and made out only to protect and sympathize with the defaulting cultivators. They alleged that in the present scenario tenders are not applicable as because the property is being sold out with the tenants and illegal occupants without evicting them and therefore the defendants have been compelled to invite private agencies for sale and some negotiations have yielded fruitful results. They denied that the plaintiffs ever approached for an explanation and was refused to give any explanation. According to them, the suit is harassive and liable to be dismissed. They averred that the Trust has been created for religious and theological purpose and for imparting free education and educational facilities for the general public of village Dihibagnan and its suburbs, and according to them even now, as intended by the Founder, the treatment both homeopathy and allopathy is available there. The said facility being too meager for the public at large, and there being huge demand for increasing the number of beds in the hospital and making extension of the infrastructure, the Trustees by a resolution have proposed to increase the number of beds to 30 as the first step towards development of the hospital. They alleged that although the hospital is being run by the Government, but the maintenance work is entrusted upon the Trustees and for increasing the number of beds and making provisions for rooms for accommodating the beds a sum of Rs.5,00,000/- is necessary. They further alleged that the K.B. Roy Dihibagnan Uchcha Vidyalaya, an English Medium School has now been affiliated upto Higher Secondary. Besides, the Trustees by a resolution have intended to start Jawahar Navodaya Vidyalaya, a free School for students from Class VI to Class XII, which will impart education for boys and girls to compete in all India basis. The proposed cost for the said purpose has been estimated to be Rs.26,00,000/-. The infrastructure for the said Vidyalaya has been started and a sum of Rs.13,00,000/- have already been spent for the purpose. According to them, the completion of the project a further sum of Rs.13,00,000/- is required. Keeping in view these projects, the Trustees have by a resolution intended to sell the suit property, which at present is a burden for the Trust and practically without any income at all. They alleged that the entire agricultural lands yield too low usufructs and the amount obtained therefrom is too meager for worship of Sree Sree Mata Singha Bahini daily and for holding Durga Puja once every two years. Therefore, the Trustees proposed to keep thee remaining sale proceeds in term deposit with the nationalized Bank to be utilised for the worship of the deity and the maintenance of the Temple. They alleged that extension of the hospital and construction of Jawahar Vidyalaya are in consonance with the wishes of the founder. They alleged that extension of the hospital and construction of Jawahar Vidyalaya are in consonance with the wishes of the founder. They alleged that the plaintiffs are opposing the said sale with ulterior motive and thereby trying to obstruct. Therefore, they prayed for a direction u/Sec.37 of the Indian Trust Act for granting permission for sale of the suit property. They prayed for relief in the counter-claim for an order directing sale of the suit property, for extension of the hospital and construction of Jawahar Navodaya Vidyalaya and other reliefs stated therein.

The plaintiffs, it appeares, did not file any written statements against the counter-claim filed by the defendants. Therefore, by default the suit on account of non-filing of the written statements against the Counter-claim, is liable to be decreed in favour of the defendants in the eye of law. But, for the ends of justice and in view of the evidence adduced by the parties, I would like to decide the suit on merits.

During the trial, the following issues were framed on 11.12.2006.

ISSUES

• 1. Is the suit maintainable in its present form and prayer?

  2. Is the Trust Estate for public purpose and of a charitable religious nature as claimed?

  3. Is the Trust Estate likely to be wasted by the present Trust Board members as alleged?

  4. Is the removal of the present Trustees necessary for proper administration of the Trust Estate as prayed for?

  5. Is declaration of framing of scheme necessary for administration of the Trust properties as prayed for<

  6. Are the Trustee members required to be restrained from alienating the Trust properties as prayed for?

  7. What other relief or reliefs are the petitioners entitled to?

DECISION WITH REASONS

Issue No.1: This issue was not pressed before me at the time of hearing arguments by any of the parties. Ld. Advocate for the plaintiffs merely submitted that the suit may be decreed in favour of the defendants with the directions that the benefit of the hospital and proposed school shall be available to the villagers. In my opinion, keeping in view the expressed wishes of the author of the Trust, any such directions are redundant. Though, issue no.1 was not pressed before me at the time of hearing, I have doubts regarding the maintainability of the suit as because a Trust has been created for the benefit of several villagers and there is nothing to show that the plaintiffs have been suing on behalf of the persons so interested as their representatives within the meaning of Order I Rule 8 of C.P.Code. I am of opinion that it should be open to any single or couple of beneficiaries to file suit whimsically leading to delaying the schemes meant for the benefit of general public without the permission of such general public and without being their representatives om the eye of law. Therefore, even though this issue was not pressed before me I am of opinion that under the facts and circumstances of the case, the suit filed by the plaintiffs is not maintainable.

Issue Nos. 2 to 7:- All these six issues being inter-related are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions.

In this suit, the plaintiffs examined only one witness Paresh Samanta, who, in his cross-examination, virtually admitted all the allegations made by the defendants in their Written Statement and Counter-Claim. No documentary or other evidence has been adduced by the plaintiffs to show that the defendants have not been maintaining any accounts or that the affairs of the Trust have not been managed properly.

On the other hand, the defendants examined one witness and proved several documents marked Exts.A to F in support of their case. Ext A is the certified copy of the Trust Deed, while Ext.B are the counterfoils of nine cheque books showing issuance of cheques by the Trustees in favour of several persons. Ext.C is a counterfoil of recepits showing rent collected by the Trust from various persons. Ext.D are five challans showing depisit of rents by the Trust with the Rent Controller. Ext.E is a register showing income of the properties vested into the Trust and Ext. F is a book of resolutions adopted by the members of the trust on different occasions. These resolutions tend to show that the Members of the Trust are trying to discharge their duties with utmost diligence and honestly. There is absolutely no document to show that the affairs of the trust are being mis-managed. On the other hand, the resolution dated 22.07.2005 shows that the Trust actually tried to implement the desires of the author of the trust so that medical and educational facilities in the village are made available to general public. The plaintiffs have disgraced themselves by applying spanner in the wheels of the smooth functioning of the Trust by filing this suit without any rhyme or reason. The resolution adopted in meeting No.101 dated 22.07.2005, if implemented, would help widen free educational facilities as well as medical facilities to the villagers as intended by the author of the Trust deed. But, in the interest of the transparency and to ensure that maximum funds come to the hands of the Trust for implementation of the noble wishes of the author of the Trust late Satish Chandra Roy, I am of opinion that this Court should certain directions regarding sale of the suit property. In order to ensure transparency and assuming that the 'B' schedule is situated within the jurisdiction of Calcutta Municipal Corporation and hence located within metropolitan area , may fetch high price, this Court is of opinion that the same be put to sale only after an advertisement to the highest bidder. I refuse to believe that tenders in respect of a property, in occupation tenants cannot be called for. Similarly, if 'A' schedule property fetches higher amount on advertisement than assured by the persons in occupation thereof, it would benefit the interests of the Trust. As such, I direct that before sale of the 'A' & 'B' schedule property the Trust shall get an advertisement published in anyone of the Bengali daily newspaper, at least one month prior to holding of such sale to the highest bidder. In addition, the Trust shall also notify their intention to sell to sell by affixing notices of such sale in all the Police Stations, Post Offices, Panchayat Offices within the jurisdiction of the Arambagh Sub-division. The Trust shall also cause a notice board of size 3' x 5' affixed at least one month prior to sale, on 'B' schedule property notifying the intention to sell and the persons whom the intending purchasers may contact for purchase. As regards the benefit, that may accrue to the beneficiaries, a perusal of the Trust deed shows that the author, it appears, intended to extend the benefit of free education and medical treatment to common people and poor people. In my opinion if the benefit be extended to everybody without consideration of their economic status, the cake of relief intended for the poor may be consumed by people who can afford to pay higher educational fees and higher charges for medical treatment. Therefore, I am of opinion that the Trust should consider imparting free education and free medical treatment for all the people who fall below the poverty line, token charges for medical treatment and educational fee from other poor beneficiaries, but should charge a higher fees for medical treatment and educational facilities from persons who are capable of and or are paying income tax, proportionate to the slab of their income subject to fixation of a maximum limit for such charges. The framing up of any such scheme for proper enforcement of these directions is left to the trustees to work out. With the aforesaid directions, I am of opinion that the suit decreed in terms of the counter-claim made by the defendants and the suit filed by the plaintiffs should be dismissed with cost.

Thus, issue nos. 2 to 7 are decided in favour of the defendants and against the plaintiffs.

C.F. paid is correct.

Hence, it is

O R D E R E D

that the suit filed by the plaintiffs u/Sec.92 of C.P. Code read with Secs. 34 & 36 of the Indian Trust Act is dismissed on contest with cost of Rs.10,000/- to the defendants and the counter-claim filed by the defendants, subject to the compliance of the instructions given by this Court in the body of the Judgement, is decreed on contest with costs in favour of the defendants.

( Harjinder Singh )

DISTRICT JUDGE,

HOOGHLY.