S.M.K.Abdul Muthalif, v. Beer Mohammed Masthan Saheb

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.04.2017

CORAM

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN C.R.P(MD)(PD)No.774 of 2017 and C.M.P(MD)No.3527 of 2017 S.M.K.Abdul Muthalif ...Petitioner/Petitioner/Objector Vs.

Beer Mohammed Masthan Saheb Dharha kanthuri Dharma Trust, Through its Trustees, 1.N.P.M.Mohammed Ibrahim 2.N.P.M.Beer Mohammed

...Respondents/Respondents/Petitioners

Prayer : Civil Revision Petition is filed Under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 08.08.2016 passed in I.A.No.34 of 2014 in Trust O.P.No.160 of 2009 on the file of the Principal District Judge, Dindigul. For Petitioner :: Mr.M.P.Senthil For Respondents ::Mr.R.Vijayakumar

ORDER

The respondents herein have filed in I.A.No.34 of 2014 in Trust O.P.No.160 of 2009 under Section 34 of the Indian Trust Act 1882, seeking permission of the Court to sell the schedule mentioned properties of the Trust. According to them, the property is a family private Trust and it is not handed over to Wakf and therefore, it is not governed by Muslim Wakf Act. The revision petitioner herein who wants to get impleaded himself as a party respondent succeeded before the Trial Court by filling I.A.No.410 of 2010, where as, the High Court in fact in C.R.P.No.1159 of 2010, he has restricted his right to file his objection and the same can be used to decide the matter, but he is not entitled to participate in the proceedings, he has not allowed to cross-examine and also he is not to implead himself as a party to the proceedings.

2.The High Court in C.R.P.No.1159 of 2010 order dated 31.10.2013, has held by., If the Court is to make all the

persons intending to raise objection as partyrespondents, the very nature of the proceedings itself will be changed into a continuous proceedings like a suit. As rightly contended by the Learned Counsel for the revision petitioners, the Trial Court committed an error in allowing the application filed by the respondent herein to get him pleaded as a party-respondent in the Trust Original Petition. On the other hand, he could have been shown as one of the objectors and his objections could have been considered while deciding the question "whether the opinion/direction/permission sought for in the Trust Original Petition is to be granted or declined?" The difference shall be that the order passed by the Court cannot be challenged by the objector in Revisional or Appellate forum without seeking the leave of such Court.

On the other hand, if he is made a party, he shall acquire the right of appeal and the same will have the effect of converting the Trust Original Petition seeking permission/opinion/direction into a contentious proceedings like a suit, which is not contemplated under the provisions of the Act.

after order of this court.

3.The revision petitioner herein has filed an application in I.A.No.34 of 2014 before the Trial Court seeking leave of the Court, to participate in the Trial of Trust O.P.No.160 of 2009 to cross examine the witnesses on the side of the respondent and to adduce oral and documentary evidence and to take steps for bringing all the facts through all means relating to the petition mentioned properties. Virtually, by seeking such a relief, the revision petitioner wants to be a party to the proceedings. 4.The Court records show only a party to the proceedings is entitled to cross-examine the witnesses and to adduce oral and documentary evidence. By filing this application, the intention of the revision petitioner is to circumvent the earlier order of this Court, dated 31.10.2013.

The Trial Court, has rightly dismissed the application holding that if at all the revision petitioner has any material to object the petition filed by the respondents, he can place before the Court, and that will be used for deciding the case, having declined permission to implead himself as a party respondent in the Trust O.P., by this Court, the revision petitioner is not entitled to participate in the Trial Court proceedings and allow to cross-examine the witnesses. This Court finds no error or illegality in the impugned order. The scope of Section 34 of the Indian Trust Act is summary in nature and publication may be effected with a view to enable any interested persons to approach the Court and raise objection.

be heard in the manner prescribed in the Act and after taking into consideration of the objection, the Court has to take a decision whether to give any opinion or decline it.

5.That is the reason why this Act require the Trustee to get leave of the Court before dealing with the property. Over and above, the revision petitioner is not belonging to the family of the respondent and therefore, he has no interest over the property and therefore, he has no right to interfere in the proceedings of the Trial Court and hence, he is not entitled to participate in the proceedings of the Trust. Further, if opportunity is provided, it will unnecessarily delay the proceedings. 6.Hence, the revision petition is dismissed. No order as to costs. Consequently, connected miscellaneous petition is also closed.

Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To Principal District Judge, Principal District Court, Dindigul.

+1cc to M/s.R.VIJAYAKUMAR Advocate in SR. No.51938 +1cc to M/s.M.P.SENTHIL Advocate in SR. No.52118 MM/CP AE/JC/10.05.2017/3P-4C C.R.P(MD)(PD)No.774 of 2017 and C.M.P(MD)No.3527 of 2017 13.04.2017