# Dilip Kumar Bajaj Revisionist v. Pradeep Kumar Bajaj

- **Citation:** (2003) 1 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-05
- **Case number:** Civil Revision No. 346 of 1998
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-kumar-bajaj-revisionist-v-pradeep-kumar-bajaj-40045
- **Pages:** 4

## Headnote

Code of Civil Procedure- Section 115-
trust was a private trust and therefore,
the provisions of Indian Trust Act, 1982
does not apply to the present trust and
application under section 34 of the Act
was not maintainable- these facts were
not considered in detail by the learned
District Judge while granting permission
to sell the properties. Accordingly, the
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12 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
order of the District Judge cannot be
maintained and the matter should be
sent back for reconsideration. (Held in
para 12)

The revision is, therefore, allowed and
the impugned order dated 9.7.1998 of
the District Judge, Mirzapur is quashed.
Case law Referred:
AIR 1953 All 449, 1997 (4) SCC 102
AIR 1975 All, 255

## Text

http://www.allahabadhighcourt.nic.in
1 All] Dilip Kumar Bajaj Vs. Pradeep Kumar Bajaj
11
the impugned order which is under
challenge in this petition.

6. In our opinion this writ petition
deserves to be allowed on the short point
that respondent no. 4 was illegally
appointed as Principal of Saraswati
Mahaviyalaya, Hathras since he had never
applied against advertisement no. 25 but
he had applied only against advertisement
no. 23 in which the post of Principal
Saraswati Mahavidyalaya, Hathras was
not mentioned.

7. It has been held by the Supreme
Court in Kamlesh Kumar Sharma Vs.
Yogesh Kumar Gupta and others (1998) 3
SCC 45, vide paragraph 12, that a person
cannot be appointed against a vacancy to
which he had not even applied. It has
nowhere been alleged by respondent no. 4
in his counter affidavit that he applied
against advertisement no. 25. When
respondent no. 4 had not even applied for
the post of Principal of Saraswati
Mahavidyalaya, Hathras, we fail to
understand how he can be appointed on
that post. In our opinion a person can be
appointed as Principal of a college for
which
he
has
applied.
Since
the
respondent no. 4 never applied against
advertisement no. 25, his appointment as
Principal of Saraswati Mahavidyalaya
was , in our opinion, wholly illegal.

8. Learned counsel for respondent
no.4 has invited our attention to Section
13 (4) of the U.P. Higher Education
Service Commission Act, 1980 and has
placed reliance on the Division Bench
decision of the Court in N.C. Yadav Vs.
Director of Education, 2001 (2) UPLBEC
1345. In our opinion this decision is
wholly distinguishable since the petitioner
in N.C. Yadav's case had applied against
the advertisement in which the college in
question was mentioned, whereas in the
present case the petitioner did not apply
against advertisement no. 25.

9. The writ petition is, therefore,
allowed. The impugned order dated
1.7.2002 (Annexure 6 to the writ petition)
and the consequential order dated
6.7.2002 (Annexure 7 to the writ petition)
are hereby quashed. The petitioner is
permitted to work as officiating Principal
of Saraswati Mahavidyalaya Hathras until
a valid selection is made by the U.P.
Higher Education Service Commission.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.12.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Civil Revision No. 346 of 1998

Dilip Kumar Bajaj
 ...Revisionist
Versus
Pradeep Kumar Bajaj
...Respondents

Counsel for the Revisionist:
Sri P. Sahai
Sri Pankaj Naqvi
Sri Pankaj Mittal

Counsel for the Respondent:
Sri Krishna Mohan
Sri R.P. Sinha
Sri Rajesh Kumar Agarwal

Code of Civil Procedure- Section 115-
trust was a private trust and therefore,
the provisions of Indian Trust Act, 1982
does not apply to the present trust and
application under section 34 of the Act
was not maintainable- these facts were
not considered in detail by the learned
District Judge while granting permission
to sell the properties. Accordingly, the
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12 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
order of the District Judge cannot be
maintained and the matter should be
sent back for reconsideration. (Held in
para 12)

The revision is, therefore, allowed and
the impugned order dated 9.7.1998 of
the District Judge, Mirzapur is quashed.
Case law Referred:
AIR 1953 All 449, 1997 (4) SCC 102
AIR 1975 All, 255

(Delivered by Hon'ble B.K. Rathi, J.)

1. This is a revision under Section
115 CPC against the judgment and order
dated 9.7.1998 passed by District Judge,
Mirzapur in Misc. Case no. 8 of 1998 by
which he granted permission to sell
certain properties of the trust to the
respondent.

2. The trust was made by late
Jamuna Das regarding his properties. He
constructed a temple of Dwarika Nathji
also known as Dwarikadhish Ji in district
Mirzapur, a dharmashala in Brindaban
and other properties at Kanpur and
Calcutta. The trust was created regarding
all the above properties by registered will
dated 3.2.1914. According to the terms of
the will Jamuna Das was to remain as
trustee throughout his life, and thereafter
his only son Seth Rameshwar Das Bajaj
became trustee. Seth Rameshwar Das
Bajaj also died on 12.3.1937. Thereafter
his son, Dwarika Prasad Bajaj, the father
of the parties became the trustee. Both
parties are sons of Dwarika Prasad Bajaj.
The respondent claimed that there was
registered will of Dwarika Prasad Bajaj
dated 22.10.1994 by which he was
appointed managing trustee of the trust.
He shown the need to sell certain
properties of the trust and moved an
application u/s 34 for permission to sell
few properties. The learned District Judge
considered the mater in detail and by the
impugned order allowed the application in
part and granted permission to sell certain
properties, and rejected the same in part.
Aggrieved by it, the present revision has
been preferred.

3. I have heard Sri Pankaj Naqvi,
learned counsel for the revisionist and Sri
Krishna Murari, learned counsel for the
respondent.

4. The first argument of the learned
counsel for the revisionist is that trust was
a
private
trust
and
therefore,
the
provisions of Indian Trust Act, 1982 does
not apply to the present trust and
application under section 34 of the Act
was
not
maintainable.
The
learned
counsel has taken me through the trust
deed, which have been created by will
dated 3.2.1914 of late Jamuna Das Bajaj.
In the will he has mentioned that he had
already given certain properties to Sri
Dwarika Nath Ji and so that no body may
interfere in the property given to Dwarika
Nath Ji, he is executing the will.
According to the will after his death his
son Rameshwar Das Bajaj was to become
the trustee and thereafter, his heirs. In the
will he has referred to the temple as his
own Thakurji and no outsider has been
appointed in the trust to look after.

5. It has, therefore, been argued that
the contents of the will show that trust is
private trust and the provisions of section
34 of Indian Trust Act does not apply.

6. Learned counsel has also referred
to Section 1 of the Indian Trust Act which
provide that nothing herein contained
affects the rules of Mohammedan law as
to Waqf or the mutual relations of the
members of an undivided family as
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1 All] Dilip Kumar Bajaj Vs. Pradeep Kumar Bajaj
13
determined by any customary or personal
law, or applies to public or private
religious or charitable endowments
(emphasis given). Therefore, it appears
that trust in question is private trust and
therefore, the provisions of 34 of Indian
Trust Act does not apply. If it is so, the
permission as granted under Section 34
appears to be without jurisdiction. This
aspect of the matter was not at all
considered by the court below.

7. Learned counsel in support of the
arguments has referred to the decision
reported in the case of Lalta Prasad Vs.
Brahmaanand and others, AIR 1953,
449, which is Division Bench decision of
this court. It was held that Indian Trust
Act has no application to public or private
religious or charitable endowment.

8. The next argument of the learned
counsel for the revisionist is that the
respondent can not be sole trustee. It is
contended that according to will of Seth
Jamuna Das Bajaj by which the trust was
created on 3.2.1914 till his death he
remained sole trustee and after his death
his son Rameshwar Das Bajaj was
became trustee and thereafter his son
Dwarika Prasad Bajaj became the trustee.
It has been argued that after the death of
Dwarika Prasad Bajaj all his heirs,
according to the Hindu Law will became
the trustee and also according to the will.
The respondent claimed that he was
appointed as sole trustee by registered
will dated 22.10.1994 by Dwarika Prasad
Bajaj. It has been argued that line of
succession can not be changed in case of
trust, and in support of the argument,
learned counsel has referred to the
decision of the Apex Court in the case of
Rambir Das and another vs. Kalyan
Das and another, 1997 (4) SCC;102. It
was
held
that
succession
to
the
shebaitship would be either as given by
the founder or in its absence , in the line
of intestate succession.

9. The other decision on this point is
Brindaban vs. Ram Lakhan Lalji and
Mohadeoji and others, AIR 1975 All,.
255, which is Division Bench decision of
this Court . It was held that :

"When
a
property
has
been
dedicated by a donor and he has thereby
divested himself of all interests in the
property, the rule of succession to the
office of shebait assumes considerable
Importance in the case of trusts, and, if
the line of succession has been laid down
by the donor at the time of the
dedication, the same can not be changed
by the donor in the absence of any
reservation of power to himself of
changing the line of succession. A
shebait cannot also alter the line of
succession to the office of Shebait laid
down by the founder. "

10. Even if the deed creating the
trust on 3.2.1914 is silent after the death
of Dwarika Prasad Bajaj, all the heirs
according to Hindu Law of Dwarika
Prasad Bajaj, will manage the trust
property and Dwarika Prasad Bajaj has no
right to execute the registered will on
22.10.1994 making the respondent as sole
trustee. Therefore, the application of
respondent for permission to sell the
property was also not maintainable. This
aspect of the matter was also not
considered.

11. It appears that these facts were
not considered in detail by the learned
District Judge while granting permission
to sell the properties. Accordingly, the
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14 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
order of the District Judge can not be
maintained and the matter should be sent
back for reconsideration.

12. The revision is therefore,
allowed and the impugned order dated
9.7.1998 of the District Judge, Mirzapur
is quashed. The District Judge, Mirzapur
is directed to reconsider the matter in the
light of the observations made above after
opportunity to the parties to produce fresh
evidence.

13. In the circumstances, the parties
shall bear their own costs of this revision.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.12.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Civil Revision No. 443 of 2001

Narendra Kumar Jain
 ...Revisionist
Versus
Sunil Kumar Chaurasia ...Oppo. Party

Counsel for the Revisionist:
Sri B.B. Paul
Sri Vimlesh Srivastava

Counsel for the Opposite Party:
Sri A.K. Gupta

Code of Civil Procedure 1908- section
115- section 25 of Provincial Small Cause
Court Act- the trial court has shown
more lienoncy than was necessary in
granting adjournments in favour of the
revisionist. Therefore, the argument that
there was no fair trial and proper
opportunity was not given cannot be
accepted.

Held - in para 11

There is absolutely no ground to remand
the case to provide further opportunity
to the revisionist to produce evidence.

(Delivered by Hon'ble B.K. Rathi, J. )

1. The opposite party filed the suit
for eviction and recovery of arrears of
rent against the revisionist. The dispute is
regarding house no. 24-E, Bank Road,
Katra, Allahabad.

2. In brief, it was alleged that the
opposite party is the owner and the land
lord of the house in which the revisionist
was tenant and the rate of rent was
Rs.1500/- per month. The house was
constructed in the year 1975 and
thereafter it was given on rent and,
therefore, U.P. Act No. XIII of 1972 does
not apply, that the rent was not paid since
July 1996, that the tenancy has been
terminated by the registered notice dated
24.8.1998
which
was
served
on
31.8.1998. Hence the suit was filed.

3. The revisionist filed the written
statement claiming ownership of the
house. He denied the tenancy.

4. The trial court framed necessary
issues. The opposite party absented and,
therefore, suit proceeded in his absence
and was decreed on the basis of the
evidence adduced by the opposite party.
No evidence of the revisionist was
recorded. Against the decree, the present
revision has been preferred under section
25 of the Provincial Small Causes Court
Act.

5. I have heard Sri Vimlesh
Srivastava,
learned
counsel
for
the
revisionist and Sri A.K. Gupta, learned
counsel
for
the
opposite
party.