ORDER
1. By means of this petition the Administrator General, Uttar Pradesh, Allahabad (the petitioner in short) has prayed for the grant of Letters of Administration in respect of the estate of one Kishan Narain since deceased.
2. Briefly stated the facts as set out in the petition are that one Kishan Narain son of late Sita Ram Vishya resident of village Sadabad district Muthura executed a registered Will dated 14-8-1933 by which he created a public trust under the name and style of “Babu Ram Kishan Narain Omar Vaishya Trust” and appointed one Managing Trustee, a Vice Managing Trustee and some other Trustees, for managing the said trust as per the directions given in the Will. Kishan Narain (Testator in short) died in the year 1934. Complaints were received from some residents of the village that the trust created by the deceased testator has failed in its purpose and the assets are being mis-appropriated, alienated and wasted by the sons of the erstwhile manager of the trust namely Satish Chandra who died on 29-10-1992. As the interested persons have failed to take appropriate steps for the protection of the estate and there being imminent danger to the assets and for the purpose of saving them from being alienated, mis-appropriated and mis-managed, therefore, it was prayed that Letters of Administration may be granted to the petitioner in respect of the estate of the deceased testator.
3. This petition is being opposed by the next of kin and heirs of the deceased as well as by some alleged trustees mentioned in paragraph No.6 of this petition. Counter affidavits have been filed by Sharad Chand and Sanjay Kumar who arc the sons of Satish Chandra and the great grand sons of the deceased testator, denying the allegations of mis-appropriation of the properties of the trust or mis-management thereof. Similar counter affidavits have been filed by the alleged trustees namely Suraj Bali and Laxmi Chand. Counter affidavits have also been tiled on behalf of Vinod Bhushan alias Kamal Narain who was grand son of the deceased testator and a Managing Trustee of the Trust, allegedly till the year 1951. In this counter affidavit, Vinod Bhushan while making similar allegations against the two sons of Satish Chandra has also stated that he has already filed a Testamentary Suit No. 1 of 1993 for Letters of Admin-
istration regarding the estate of the deceased testator which suit is pending before the court below. Another counter affidavit has been filed by alleged Acting Managing Trustee Ram Nath in which the allegations of mis-appropriation and mis-management of the Trust properties have been denied and it has been asserted that he was appointed the Acting managing Trustee of the trust in the year 1992 alter the death of Satish Chandra and is presently Managing the trust and taking all measures to protect its properties. Further the said Managing Trustee has filed a suit being Suit No. 5 of 1994 on behalf of the Trust against Laxmi Chand and others for permanent injunction for safeguarding the trust properties and also obtained an interim injunction in favour of the Trust. It has been further stated that the present petition has been filed at the instigation of certain persons against whom legal proceedings were taken and the petition was not maintainable. Rejoinder affidavit has been filed to the said counter affidavit on behalf of the Administrator General reiterating the allegations of mis-appropriation of the properties of the Trust and mismanagement of its affairs.
4. An application (A-16) has been filed on behalf of the alleged Managing Trustee namely Ram Nath Praying that an issue be framed regarding the right of the Administrator General to maintain this petition either under Section 9 or 10 of the Administrator General Act, 1963 (the Act in short land the same be decided as a preliminary issue. Prayer has also been made for summoning the record of suit No. 45 of 1994 filed by Ram Nath and Testamentary Case No. 1 of 1993 filed by Vinod Bhushun from the respective Courts and be consolidated along with the present case. This Court had on the said application, summoned the record of the aforesaid two cases and had also vide its order dated 3-1-1996, indicated that the objection regarding the maintainability of the present petition shall be listed for hearing.
5. I have heard Sri J. Nagar, learned Counsel for the petitioner and Sri K.M. Sinha learned Counsel appearing for the alleged Managing Trustee Ram Nath. Sri Janardan Sahai learned Counsel appearing for [he other alleged Trustees and Sri B.K. Srivustava learned Counsel appearing for Vinod Bhushan, regarding the maintainability of the petition.
6. On behalf of the objector Ram Nath. Sri K.
M. Sinha has strongly urged that the petition by the Administrator General for grant of Letters of Administration can only be maintained if mere are ho next of kin or they are not interested in seeking Letters of Administration. Learned counsel has supported his submission by referring to the relevant provisions of the Act and certain decisions which shall be referred to subsequently.
7. Hawing heard the learned Counsel for the parties, I find sufficient force in the submissions made by Sri Sinha.
8. It is note worthy that the main object behind the Administrator General Act is to provide a machinery for proper administration of estate where there is no next of kin of any deceased, by a competent person on the directions of the High Court. It is the Administrator General who is constituted as the competent person under the Act. This is also depicted from the provisions of Section 7 of the said Act which reads as follows:
“7. Administrator General entitled to Letters of Administration, unless granted to next-of-kin–Any Letters of Administration granted by the High Court shall be granted to the Administrator General of the estate unless they are granted to the next of kin of the deceased.”
9. Section 9 of the Act speaks about the right of the Administrator General to apply for administration of estate and sub-section (1)(c) of section 9 in effect lays down that the Administrator General can apply for Letters of Administration if no person has taken other proceedings for the protection of the estate. It is, therefore, clear that the Administrator General will be entitled to the grant of Letters of Administration only in the absence of the next of kin or where the next of kin does not take steps to obtain the Letters of Administration.
10. Section 11 of the Act goes a step further and states that if in the course of the proceedings to obtain Letters of Administration by the Administrator General, any person appears and establishes his claim to Letters of Administration as next of kin of the deceased and gives such security as may be required to him by law or any person satisfies the High Court that he has taken and is prosecuting with due diligence other proceedings for protection of the estate or that the High Court is satisfied that there is no apprehension of misap-
propriation, deterioration or waste of the assets and that the grant of Letters of Administration in such proceedings is not otherwise necessary for the protection of the assets. High Court shall drop the proceedings and award cost to the Administrator General. This position has been accepted by our Court in some decided cases. In the matter of Ram Kali v. Administrator General, U.P., reported in AIR 1943 All 356. A Division Bench of our Court by interpreting the relevant provisions of the Administrator General Act, 1913 had laid down that in the proceedings before the High Court for Letters of Administration the Administrator Genera! will have a right in preference only against creditors, legatees other than universal legatees or friends of the deceased but will not enjoy any preference over the next of kin. After the Administrator General Act of 1963 had come. A Full Bench of our Court in the case of Mrs. G. Gordon v. Administrator General, U. P. upheld the observations made in the case of Ram Kali (supra). The Full Bench clarified that the right to apply by an Administrator General for Letters of Administration is subject to a circumstance, “when there is no next of kin.” “Another Division Bench of our Court in the case of Administrator General v. Peter Anthoney, reported in AIR 1979 NOC (All) (sic) had held that the pre-condition of seeking an interim order by a petition under Section 10 of the Act rested on the terms that an application under Section 9 of the Act was maintainable implying thereby that if grounds for sustaining an application under section 9 were not there or the same were not maintainable. No order under Section 10 of the Act could be passed. Another Division Bench of our Court in the case of Ronal Lloyed Powell v. Administrator General (AIR 1967 All 231) reiterated the view that the right to obtain Letters of Administration is that of the executors and the Administrator General in their presence had no right whatsoever to obtain Letters of Administration. In fact, the Court in this case passes strictures against the Administrator General for having objected to the grant of Letters of Administration by the executors.
Learned counsel for the objector has also referred to an unreported decision of a learned single Judge of this Court in the matter of the goods of late Hiri Savi Ramiah in Testamentary case No. I of 1990 connected with Testamentary case No. 17 of 1989 and 4 of 1990 decided on 18-
4-1994. The learned Judge after considering the cases mentioned above held that the Administrator General cannot interfere with the proceedings for the grant of probate or Letters of Administration initiated by an heir or next of kin and it is the business of the Court to enquire on the bona fides and the credibility of an heir or next of kin. Therefore, the Administrator General will have to wail for the verdict of the Court before he meddles with the case pending for consideration on a petition for grant of probate or Letters of Administration by the next of kin or heir.
11. Apart from his submission based on the provisions of Section 7 of the Act referred to above, Shri Sinha has also contended that even under Section 9(2) of the Act, the Administrator General could take proceedings for grant of Letters of Administration only if he was satisfied that there was an apprehension of misappropriation, deterioration or waste of the assets if such proceedings are not taken by him and the proceedings were necessary for the protection of the assets. Therefore, according to the learned Counsel the Administrator General shall not act merely because he has received a complain! from some outsider or a third person but he has to be satisfied after fully enquirying into the matter that the allegations of mis-appropriation, deterioration and waste of the assets arc fully established. Learned counsel has submitted that no where in the petition has it been alleged that the Managing Trustee namely Ram Nath was either mismanaging or misappropriating or wasting the assets of the Trust. In fact, the Administrator General was not even aware that Ram Nath the alleged Managing Trustee had already filed a suit for injunction against certain parties for safeguarding the trust properties. Besides, he had also got himself impleaded as a party in Testamentary case No. 1, of 1993 filed by one of the next of kins of the deceased-testator. In this view of the matter, the learned counsel has submitted that the very basis for the Administrator General for filing the present petition is missing and consequently also the present petition deserved to be dismissed as no! maintainable. I find substance in both the submissions made by the learned Counsel and am of the view that as the grand son of the deceased testator as next of kin has filed a testamentary case in the court below for the grant of Letters of Administration with the will annexed and
further in view of the fuel that the Administrator General has not disclosed what enquiry has been made regarding the allegation of mis-appropriation, deterioration and waste of the assets of which also there is no specific averments made in the petition, this petition by the Administrator General under the provisions of Sections 9 and 10 of the Administrator General Act is not maintainable.
12. Appearing for the Administrator General
Sri J. Nagar has however, contended that the aforesaid petition for the Letters of Administration filed by the Administrator General was not only under the Administrator General Act hut also under Section 10 of the Official Trustees Act. 1913. Learned counsel has contended that even if it is taken that under Section 7 of the Administrator General Act, the petition would not he maintainable as the next of kin are available and the case for grant of Letters of Administration with the will annexed is pending before the Court below yet by virtue of the provisions of Section 10 of the Official Trustees Act, this Court is empowered to grant Letters of Administration to the Administrator General as Official Trustee he-cause the property in question is subject of a Trust and the trustees are not capable to act for the benefit of the Trust. Elaborating his argument-learned counsel has contended that it is apparent from the record of the two suits pending before the Court below namely Testamentary Case No. 1 of 1993 and Original Suit No. 45 of 1994 that the trustees are fighting among themselves and there is a dispute as to who is the Managing Trustee. That apart allegations have been made regarding mis-appropriation of the Trust property against Sharad Chand and Sanjay Kumar sons of the alleged deceased Managing Trustee, It is apparent therefore, that the Trustees are incapable of acting in the interest of the Trust and consequently the provisions of Section 10 of the Official Trustees Act are attracted. The petition before this Court, therefore, would be maintainable under the said Act. For appreciating the submissions made by the learned counsel, it would be appropriate to quote the provisions of Section 10 of the Official Trustees Act. 1913 which reads as follows :
“10. Powers of High Court to appoint Official Trustee to be trustee of property– (1) If any property is to a trust other than a trust which the
Official Trustee is prohibited from accepting under the provisions of this Act and there is no trustee within the local limits of the ordinary or extraordinary original civil jurisdiction of the High Court willing or capable to act in trust, the High Court may on application make an order for the appointment of the Official Trustee by that name with his consent to be the trustee of such property.”
13. Analysing the above noted provision what emerges is that if there is no Trustee within the local limits of the civil jurisdiction of the High Court who is willing or capable to act in Trust and if an application for appointment of the Official Trustee is made, the High Court on the said application may appoint the Official Trustee after obtaining his consent to be the trustee of the said properly. In the facts of the present case at hand, there is nothing before the Court to suggest that the Trustees are not willing to act. In fact it is being contended by Ram Nath that he is the Managing Trustee since the year 1992 and he is already active and taking all protections to protect the property of the Trust and manage the same effectively. Though the sons of Satish Chandra the Ex Managing Trustee are contesting the claim of Ram Nath to be the Managing Trustee yet they have not denied the static of Trustee to Ram Nath. They have also asserted that they arc Trustees of the Trust and are acting in the interest of the Trust. The allegations of misappropriation and waste have been denied by them. Sri Nagar has however, strongly urged that the Trustees arc incapable of acting on account of the dispute inter se between them. So far as the dispute’s are concerned, the same will be decided in the pending suits but it cannot he said that merely because a suit is pending in which the status of the Managing Trustee is being denied that the Trustees are incapable to act specially when already an injunction suit has been filed on behalf of the Trust by Ram Nath who has also obtained an interim injunction therein. That apart, as there is no application as envisaged under Section 10 of the Official Trustees Act for appointment of the Official Trustee for managing the Trust, as already seen above, the application was filed for grant of Letters of Administration by the Administrator General. Neither the Official Trustee nor any person has moved any application to appoint the Official Trustee as a Trustee in the present case.
Sub-section (6) of Section 7 of the said Act lays down that the Official Trustee shall not administer the estate of a deceased person unless he is expressly appointed as executor of, and sole Trustee under the Will of such person. There is no such order in the present case appointing the Official Trustee as sole executor consequently the submission made on behalf of Administrator General to administer the estate of the deceased in his capacity as the Official Trustee under the Official Trustees Act, 1913 cannot be accepted.
14. Sri Nagar has however relied upon a Division Bench of our Court in the case of Satya Narain v. Official Trustee, U. P.. Allahabad, reported in 1982 (8) All LR 551. I have carefully perused the said decision but I am of the view that the same is distinguishable on facts and is also of no help to the learned counsel. In the said case a Trust was created regarding the movable and immovable properties of the testatrix by means of a Will. The Trustees however found that they were not in a position to execute the Trust in accordance with the directions contained in the Will and, therefore, requested the Official Trustee U. P., Allahabad through their President, to assume charge of the Trust in their place. Consequently, the Official Trustee made an application under Section 10 of the Act for being appointed as the sole Trustee of the said Trust. The learned Single Judge allowed the said application and appointed the Official Trustee U. P. as the sole Trustee of the Trust. The order of the learned Single Judge became final. Subsequently, an application was filed beyond time for setting aside the said order. The application was rejected by the learned Single Judge against which the Special Appeal “was filed and dismissed by a Division Bench on the ground that the application of the applicants were time-barred and the main object of the Trust being charitable the provisions of Section 7(5) of the Act were not applicable. In the said case, the Trustees themselves requested the Official Trustee to take over the affairs of the Trust and an application to the said effect was filed before me Court. In the present case at hand there is no such a request either on behalf of the Trustees or any such application from the side of the Official Trustee for being appointed as a sole Trustee under Section 10 of the Act neither is there any such order from this Court. Sri Nagar has however contended that in the present case
also the two persons of the village in which the Trust properties were situated, had requested the’ Administrator General to take over the affairs of the Trust and consequently, the present application can be taken to be an application under Section 10 of the Official Trustees Act. I am unable to agree for the reason that the conditions for invoking the provisions of Section 10 of the Official Trustees Act had not been satisfied in the present case. Besides, the Will of the testator itself lays down that in case if there be any mis-management to run the affairs of the Trust by the Trustee, first opportunity should be given to the Trustees themselves to set right the affairs of the Trust failing which the members of the Omar Vaishya community either individually or collectively would try to get the affairs settled failing which any person belonging to the Sanatan Dharm would make an effort to get the matter set right failing which measures to get the matter settled by the Court should be adopted. From the facts of the case, it is apparent that the Trustees themselves are trying to get the matter settled by filing suits and in such case the complaint made by two persons of the village who admittedly do not belong to the Omar Vaishya community will be premature and no action can be taken thereon.
15. Sri Nagar has also referred to a decision of the Delhi High Court in the case of Dr. Man Singh and others reported in AIR 1974 Del 228. I have carefully perused the decision but the same is totally distinguishable on facts and will have no direct application to the facts of the present case. In the said case, an application was filed by the Trustee for permission to sell the immovable properties and to wind up the Trust. The Court was considering the provisions of Sections 34 and 37 of the Charitable and Religious Trust Act and the observation made by the Court was in the said light.
16. As a result of the aforesaid discussions, I find substance in the objection/application A-16 filed on behalf of Ram Nath objector. I am of the view that the present application by the Administrator General was not maintainable for the reasons stated above and further that the provisions of Section 10 of the Official Trustees Act were not attracted to the facts of the present case. Consequently, testamentary Suit No. 8 of 1995 is dismissed as not maintainable. Cost on parties. The office is directed to send back the record of the
Testamentary Suit No. 1 of 1993 and Original Suit No. 5 of 1994 which was summoned by an order of this Court, to the respective Courts from where these were summoned, forthwith. The Court below is directed to try the said suits as expeditiously as possible and decide the same preferably within six months from the date of the receipt of the record.
17. Order accordingly.