Rajiv Sahai Endlaw, J.@mdashThe applications have been filed by the son of the plaintiff under Order 22 Rule 4 of the CPC for substitution on the demise of the plaintiff and for condonation of delay of 19 days in filing the application. It is stated that the applicant was suffering from typhoid fever from 5th July, 2005 to 28th July, 2005. The applications are opposed by the contesting defendants.
2. The application for condonation of delay is supported by the affidavit of the applicant. There is no denial of the fact that the applicant was suffering from typhoid fever. I find sufficient ground to have been made out for condonation of delay.
Accordingly, the delay in filing the application is condoned.
3. The plaintiff had instituted the present suit u/s 3 of the Charitable and Religious Trust Act, 1920 and with respect to the Radhika Trust. It is the case in the plaint that the said Radhika Trust was formed by Smt Shyama Devi, mother of the deceased plaintiff; that the plaintiff had remained with Smt Shyama Devi throughout her life in all the religious activities done by her and the plaintiff remained an active participant in the work of the trust; that prior to the institution of the suit, it was brought to the notice of the plaintiff that the defendants were disposing of the properties relating to the trust; that the khatauni relating to the land underneath one of the properties of the trust was, inter alia, in the name of the plaintiff who was as such successor in interest of her mother and thus had sufficient interest in those properties and the plaintiff was as such interested in the welfare of the trust and in seeing that its funds are not misappropriated. The suit was accordingly filed to direct the defendants to furnish accounts and other particulars of the trust and for restraining them from misappropriating the funds and properties of the trust. u/s 3 of the Charitable and Religious Trust Act, 1920 any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature, is entitled to apply by petition to the court to obtain orders as mentioned therein against the trustees and for accounts of the trust. I am, at this stage, not entering into the question whether the plaint/petition as filed by the deceased plaintiff disclosed any interest of the deceased plaintiff or not.
4. The application for substitution, however, merely states that the plaintiff has died and is survived by one son i.e., the applicant and three daughters; that the plaintiff prior to her death had given a general power of attorney to the applicant to look after all her properties including the properties subject matter of the suit and relate to the trust in question; that the plaintiff has left a Will under which she has bequeathed all her properties movable and immovable to her son, the applicant; that the daughters of the deceased plaintiff thus have no right, title or interest in the said properties. On the basis of the said averments the applicant has sought his substitution in place of the plaintiff in the present suit.
5. It is significant that the application nowhere states that the applicant has any interest in the alleged trust. Substitution is sought merely on the ground of being the son and a Will in his favour.
6. The question, therefore, which arises whether a son of a plaintiff/petitioner in a suit/petition u/s 3 of the Charitable and Religious Trust Act, 1920 is, by virtue of such relationship, entitled to be substituted. In my view the answer necessarily is to be ''no''. The right, if any, of the deceased plaintiff to institute the suit/petition u/s 3 of the Act was personal to the deceased plaintiff. The said personal right was claimed for the reason of being associated in the activities of the trust and/or for the reason of the desire of the deceased plaintiff to ensure that the property of the trust founded by her mother are not misappropriated. The applicant without even averring that he has any such interest and without disclosing such interest, for the reason of being a heir under the Succession Act or the only heir under the Will, is not entitled to be substituted. It has been held in
7. To the same effect is Balkishan Dass v. Parmeshri Dass AIR 1963 P&H 187 where also it was held that only a person having an interest in the trust could be substituted and not merely for the reason of being a natural heir of the deceased.
8. Even in
9. Lastly, I refer to the judgment of this Court in
10. For the reasons aforesaid, the applicant having not disclosed himself to be the legal representatives and the right to sue having not been disclosed to have survived, the application is dismissed.
