ORDER
1 Petitioner in O.P.No.7 of 1996 on the file of Principal District Judge, Dindugul is the revision petitioner herein.
2. An application was filed under Section 7 of the Charitable and Religious Trusts Act, 1920 by petitioner for opinion, or advise or direction of the Court for sale of immovable properties belonging to the Trust. By the impugned order lower court dismissed the same on the ground that there are vacancies in the Board of Trustees and unless the same is filled up, it will not consider the request for giving opinion. The application was dismissed.
3. Learned counsel for petitioner submitted that the impugned order of lower court is based on misunderstanding of law. Merely because there is vacancy in the Board of Trustees that will not debar a trustee from getting
opinion. Counsel further submitted that he being a hereditory trustee, he is entitled to move under section 7 of the Charitable and Religious Trust Act, 1920 and the Court cannot dismiss the same for reasons stated therein.
4. After hearing counsel for petitioner, I find force in the above contentions.
5. Section 7 of the Charitable and Religious Trust Act, 1920 reads thus,
“Section 7: Powers of Trustee to apply for direction : (1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious fature may apply by petition to the court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the court on any question affecting the management or administration of the trust proport, and the Court shall give its opinion, advice or direction, as the case may be thereon:
Provided that the court shall not be bound to give such opinion, advice or direction on any question which it consider to be a question not proper for summary disposal.
(2) The court on a petition under sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the persons interested in the trust, or to be published for information in such manner, as it thinks fit.
(3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.”
6. In Avoch Thevar v. Chummar, 1957 Ker. 171, their Lordships considered the jurisdiction of Court when a Trustee moved court for getting an opinion. In paragraphs 6 to 9 of the decision their Lordships considered this question and held thus,
“(6) The next question is as to the scope of the jurisdiction of the court under the section and whether the court below has acted in excess. The Section it is clear, grants liberty to a trustee to get the direction, advice, etc., of the court regarding the management or administration of the court regarding that management or administration of the trust property. The “Court under the section exercises what might be called its consultative jurisdiction, giving guidance to the trustee. The court is not, however, to grant sanction merely because it is applied for. The limitation is that the court will refuse to consider the matter if in its opinion the question is one not capable of summary disposal e.g., if it is one of detail or difficulty. In any event the court will consider judicially the matters placed before it before disposing of the matter.
(7) In In re Samuel Marie Brereton, ILR 7 Bom 381 (B), the question came up before the Bombay High Courts under S. 43 of the Indian Trustees and
Mortgagees’ Act. 28 of 1866 in regard to the payment out by the Administrator General of Bombay of the net collections in his hands to the administrator of the domicile. The section, as here, empowered any trustee, executor, or administrator without the institution of a suit, to apply by petition to any Judge of the High Court for the ‘opinion, advice or direction’ of such Judge on any question respecting the ‘management or administration’ of the trust property or the assets of any testator or intestate. Latham, J., referred to and followed the English authorities on the almost identical provisions contained in S.30 of the English Act 22 and 23 Vic. C 35 Law of Property Amendment Act 1859 (known as Lord St.Leonad’s Act). He quoted the observations of Kindersley V.C., in In re Lorenz’s Settlement 1861 (1) Dr. and Sm. 401 at p. 404 (C):
“My understanding of that section of the Act is, that it was intended by the Legislature that the court should have the power to advice a trustee or executor as to the management and administration of the trust property in the manner which will be most for the advantage of the parties beneficially interested, but not to decide any question affecting the rights of those parties inter se: otherwise the effect would be that a deed or will involving the most difficult questions, and relating to property to an amount however large, might be construed, and most important rights of parties decided, by a single judge, without any power of appeal whatever. This, I am satisfied, the Legislature never intended.”
He next referred to the opinion of Sir. J. Romilly in In re Mary Hooper, 1861 (29) Beav, 656 at p. 657 (D), in regard to the same section,
“that the object of this clause was to assist the trustees in the execution of the trusts as to little matters of discretion.”
and in the result refused to give any opinion on the question proposed cause,
“It is no part of the duty of a Judge under S. 43 to give any opinion on a point the decision of which may depend on questions of right or title.”
In In re Lakshmi Bai, ILR (12) Bom 638 (E), where again opinion was sought under this S.44, Scott, J., referred to the English cases and also In re Samuel Marie Brereton, ILR 7 Bom 381 (B), just cited and said:
“The court will not, under this section, advise trustees as to disputed points of law or fact, but will do so only as to undisputed matters of management, such as questions of advancement, maintenance, change of investment, sale of a house, compromises taking proceedings etc.”
(8) We have again cases under S. 302 of the Indian Succession Act which empowers the High Court to give any general or special directions in regard to the administration therefor on application made it by an executor or administrator. Page J., in Provesh Chandra v. Ashutosh Mukherji, ILR 56 Cal 979 at P. 988: AIR. 1930 Cal 258 at p. 261 (F), was inclined to think that the Court would not be competent on such application to determine any disputed question of title and the issue, of directions to the executor or administrator should be confined to the management and administration of the estate. In re Akshoy K Ghose, AIR 1949 Cal 462(G), P.B. Mukherji, J., dealing with the scope of the expression, ‘directions’ in S. 302 of the Indian Succession Act observed that the word did not mean adjudication and determination of substantive right but only
“directions to help the executors in the difficulties in respect of practical management or administration where no disputed question of title or difficult question of construction of will or complicated question of law are involved.”
and added that the court was here exercising the same limited jurisdiction as was conferred by S. 30 of 22-23 Vict. Chapter 35 or S. 43 of the Trustees’ and Mortgagees’ Act notwithstanding the additional words ‘opinion or advice’ in those sections.
(9) Finally S. 34 of the Indian Trusts Act 1882 may be referred to in this connection. For, wholly providing for the trustee’s right to apply to court for opinion etc., in the management of trust property, it embodies at the same time, the. limitations governing the questions to be asked that is, they should be “present” i,e., not nature or contingent or hypothetical and also be other than questions of detail or difficulty or importance not proper in the opinion of the court for summary disposal.” See Arumugam Chetty v. Raha Jagaveera, ILR 28 Mad. 444 at p. 450(H).”
7. In In Re Birla Jankalyan Trust, of the judgment, their Lordships held thus,
“12. The said Section 7 entitles a trustee to apply for the direction, advice or
opinion of the Court with regard to the management or administration of the trust
property where the trust is a public charitable or religious trust. Under Sub-section
(2) of the said Section 7 directions were obtained for services upon the Income-tax
Officer. “B” Ward, Companies’ Dist.I. as well as the Commissioner of Income-tax
west Bengal I. The proviso to sub-section (1) of the said section lays down that the
court will refuse to consider the matter if the questions involved in the matter in
which its advice or opinion has been sought are not capable of summary disposal.”
(Italics supplied)
8. Similar is the case reported in In Re Man Singh, AIR 1974 Del. 228.
9. In In Re Dhanalal, learned Judge of Calcutta High Court held that the provisions of Section 7 of Charitable and Religious Trust Act, 1920 is similar to the provisions of Section 34 of the Trusts Act.
10. In view of these decisions, it has to be held that petitioner is competent
to file an application before lower court seeking opinion. Unless Court finds that
the opinion cannot be given since there are complicated facts or question of law
is to be decided, it may not be proper on its part to refuse to give opinion. After
all, Court is guardian or Protector of all public trusts and it cannot refuse to give
its opinion, when the same is sought for by a Trustee.
11. In this connection, learned counsel also brought to my notice that the Deputy Commissioner of Hindu Religious and Endowments, Madurai in O.A.No. 10 of 1998 passed an order that the trusteeship was hereditary. Similar is the case when a land belonging to the Trust was acquired and the same was referred before Subordinate Judge’s Court, Dindugul in L.A.O.P.No. 6 of 1975. Single trustee was allowed to receive the amount of compensation. Out of the six Board of Trustees five were dead and the sole surviving and Managing Trustee was allowed to get compensation amount as per directions of that court. Petitioner herein is the legal heir of the Managing Trustee. Merely because there is only one trustee and when the Court has got supervisory power over the Trust, it can give necessary directions or advice, in what way the property is to be sold or whether the sale of property is proper or not. petitioner only wanted to
manage the property on the basis of advise given by Court. Court cannot abdicate its duties when such a request is made.
12. In the result, the impugned order is set aside and I direct the lower court to consider the application field by petitioner on merits and if necessary by taking evidence. The lower court may also take such procedure as is necessary before it could pass any order in the application.
13. The revisions petition is allowed. O.P.No. 7 of 1996 is remanded back to the Principal District Judge, Dindugul for fresh disposal on the basis of above observations. Petitioner is directed to appear before lower court on 31.8.1999.