Judgment:
Basudeva Panigrahi, J.
1. This is a revisional application against an order dated 13.4.1995 passed by the learned District Judge, Hooghly in Misc. Case No. 94/93 allowing the application filed by the opposite party No. 1 under Section 34 of the Indian Trust Act according permission for transfer of the trust properties for the purposes of B.L. Mukherjee School Improvement/P.H.C. Improvement at Boinchi.
2. One Beharilal Mukherjee since deceased had executed a will dated 9th August, 1870 during his life time by creating the trust and transferred his properties in favour of the said trust and delivered possession of his entire properties. The said B.L. Mukherjee created the trust with the laudable aim and object for public welfare, cultural upliftment, religious and social works and had laid down the scheme of management in the solemn Will. A dispute arose as regards the Management and Administration of the estate of late Beharilal Mukerjee's estate. Therefore, a suit was filed before the District Judge, Hooghly who on 29th March, 1887 delivered his judgment and decree directing the Collector, Hooghly to be appointed as a trustee in respect of the sum of Rs. 1,50,000/- as specified in the Will and a further sum of Rs. 10,000/- for the erection of two separate pucca houses for the School and dispensary respectively. The decree further directed that the School and dispensary so established shall be under the Superintendence of the Collector. The dispute was, however, carried upto the Privy Council and the Hon'ble Privy Council by their Judgment dated 2nd March, 1881 confirmed the Judgment and decree of the courts below. From then on, the Collector Hooghly has been acting as the custodian of the Beharilal Mukherjee Trust. Paragraph 20 of the Will also had conferred right on the State Government.
3. The opposite party No. 1 Sri Amerendra Nath Singh who was the Collector of Hooghly District filed an application before the learned District Judge, Hooghly at Chinsurah for permission of the sale of some land for the maintenance of the Estate and creation of a ward in the name of the donar's wife Kamala Yamini Devi. In the said application, the opposite party No. 1 had also made further prayer for the construction of a ward in Imambara Sadar Hospital in the name and style of 'B.L. Mukherjee Ward' with the help of the Government and the sole trustee was under an honest belief that the Government would permit to use the name of the ward as 'B.L. Mukherjee Ward'. The present petitioner had filed written objection denying the material allegation of the opposite party No. 1 and opposed the permission for transfer/aliea-nation/sale of any of the trust property.
4. The learned District Judge had, however, after a serious cogitation of the facts and circumstances of the case granted permission to the opposite party No. 1. Thus, the petitioner being aggrieved by and dissatisfied with the order of the learned District Judge preferred this revision.
5. Mr. Bhaskar Bhattacharjee, the learned advocate appearing for the petitioner, has at the outset invited my attention that the learned court below could not have invoked the jurisdiction under Section 34 of the Indian Trust Act inasmuch as when the opposite party No. 1's prayer for permission for sale of the land. In that background, the learned District Judge should have directed the opposite party No. 1 to file a separate suit after taking recourse to Section 92 of the C.P.C. The advisory jurisdiction of the learned District Judge should not have been invoked when there was a case of detail, difficulty and importance issues involved in the matter. It has been further contended that the Collector has adopted a resolution for extinguishment of the trust which runs contradictory to the scheme of the trust. Therefore, in this back-ground, the court could not have been a party to such extinguishment of trust which was against the wishes of the Doner.
6. Mr. Saktinath Mukherjee, the learned Senior Advocate appearing for the opposite party No. 1, has repelled the contention of Mr. Bhattacharjee and submitted that Mr. Bhattabharjee's client has acted against the interest of the trust and had even gone to the extent of filing a suit against the opposite party in T.S. No. 49/95 pending in the court of Munsif, Hooghly at Chinsurah. Therefore, when the interest of the petitioner is in serious conflict against the trust, it seems inappropriate for him to contend that the action of the opposite party No. 1 was illegal, high-handed and arbitrary. Mr. Mukherjee further indicated that most of the properties have been already transferred in the name of the respective institution which were the beneficiary under the trust created by B.L. Mukherjee. The opposite party No. 1 in support of his claim has stated the names of the alienees in whose favour the properties were transferred.
'(a) B. L. Mukherjee Free Institution, Boinchee has been gifted 57.30 acres of lands by the registered deeds of gift dated 17th April, 1995 and 18th April, 1995.
(b) B. L. Mukherjee Public Health Centre (now taken over by the Government) has been gifted 0.67 acres of land by a registered deed of gift dated 17th April, 1995.
(c) Binapani Balika Vidhylaya, Boinchee, Pandua, Hooghly, has been gifted 0.37 acres of lands by a registered deed of gift dated 17th April, 1995.
(d) Batika Boinchee Gram Panchayat has been gifted 2.71 acres of land by a registered deed of gift dated 17th April, 1995.
(e) B.C.K.M. High School Jangalpara, Pursurah, has been gifted 0.58 acres by a registered deed of gift dated 18th April, 1995.
(f) Kheyali Sangha Library, Jangalpara, Pursurah, has been gifted 0.06 decimals of land by a registered deed of gift dated 18th April, 1995.
(g) District Primary School Council for Kalitala Primary School at Pursurah, has been gifted 0.10 decimals of land by a registered deed of gift dated 18th April, 1995.
(h) Jankalyan Samity, Jangalpara, Pursurah, has been gifted 0.05 decimals of land by a registered deed of gift dated 18th April, 1995.
(i) Bansberia Municipality, Hooghly, has been sold 0.356 acres of land by aregistered deed on conveyance dated 18th April, 1995 for Rs. 99,000/-.
(j) 23.86 acres of lands have been surrendered for vesting in the State as per provision of the West Bengal Land Reforms Act, 1995'.
Only a solitary conveyance was executed in favour of Public body, namely, Bansberia Municipality for Rs. 99,000/- and the said amount has been distributed among the beneficiary Institution under the Will.
7. The opposite party No. 1 has again filed an affidavit that though there was a proposal for construction of a big Ward in the Imambarah Sadar Hospital in the name and style of B.L. Mukherjee Ward neither it was pursued nor pressed and, therefore, consequently the learned Judge did not pass any order in that regard. The petitioner before the learned District Judge had also filed an application to delete the properties mentioned in the petition and to substitute the said application by a new schedule. The properties which were sought to be amended have also been transferred in favour of other beneficiaries Institutions under the Will. By an affidavit dated 7th August, 1996, the opposite part No. 1 affirmed that the Trust Estate had total area of 86.056 acres of land out of which acres 62.196 have been transferred to the beneficiaries under the relevant Will and the other institutions, the remaining 23.86 acres of land had vested to the State under the West Bengal Land Reforms Act. There is no other property in the said Trust. Though both parties have filed the xerox copy of few case law, I did not feel it necessary to discuss in-extenso, since the application for transfer could be disposed of otherwise. In view of the above position I deem to not necessary to pass any order for according permission to the Collector for transfer of the land. Consequently the revisional application became in-fructucus and therefore, it is dismissed but in the circumstances without cost.