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CASE NO.: Appeal (civil)  1320 of 2007

PETITIONER: Ashok Kumar Kapur & Ors

RESPONDENT: Ashok Khanna & Ors

DATE OF JUDGMENT: 13/03/2007

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T

[Arising out of SLP (Civil) No. 8611 of 2006]

S.B. SINHA, J :

       Leave granted.

INTRODUCTION :

       Interpretation of Section 34 of the Indian Trusts Act, 1882 (for short,  ’the Act’) is involved in this appeal which arises out of a judgment and order  dated 06.02.2006 passed by a Division Bench of the Calcutta High Court in  APOT No. 584 of 2005,  affirming a judgment and order of a learned Single  Judge of the said Court.

BACKGROUND FACTS :

       M/s Dunlop India Ltd. (for short, ’the Company’) is an existing  company within the meaning of Section 3(1)(ii) of the Companies Act, 1956.   The Company floated a Fund known as ’Dunlop Executive Staff Pension  Fund’ for providing pension and annuities to the members of the executive  management staff  of the Company.  Clause (3) of the said deed reads as  under :

       "These presents shall constitute a trust upon and  subject to the Rules and to the law for the time being in  force in India relating to Pension Funds which trust  irrevocable and no moneys belonging to the Fund in hand  of the trustees shall be recoverable by the Company or  shall the Company have any lien or charge of any  description on the same."

       Part I of the said deed provides for the ’Rules of Dunlop Executive  Staff Pension Fund.   

       "Member" has been defined in Rule 2(k) to mean :

"Member’ shall mean a member of the executive staff or  of the management staff of the employers who has been  admitted as a member of the Fund in accordance with the  Rules but shall not include an employee who having been  admitted as a member has subsequently retired or whose  service has otherwise been terminated by reason of  dismissal, resignation, retrenchment or otherwise."

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                                Part-II of the said deed provides for administration of the Trust.   Whereas part III provides for membership,  part IV provides for  contributions. Rule 11(a) of the said deed reads as under :

"The employers may at their absolute discretion pay to  the trustees in respect of each member an initial  contribution of such sum and in such instalments as they  may think fit in respect of the past services of a member  subject to the provision of Rule 88 of the Income Tax  Rules, 1962 and to any condition that the Central Board  of Direct Taxes may think fit to specify in that regard."

       The terms of said deed were amended from time to time.  Although in  terms of the original deed a member would have been entitled to pension on  completion of ten years’ of service,  Rule 14(b) (iii) was introduced in terms  whereof the eligibility period was reduced to two years.  The said provision  reads as under :

"14(b) (iii) In case of whole time Directors, Senior Vice  Presidents and Vice Presidents who retire at or after  attaining the normal age of retirement or on completion  of the stipulated period of service/contract, a pension  shall be payable calculated as per rules 14(a).   The  pension so calculated shall not however be less than 50%  of his last drawn salary nor shall it exceed 100% of such  salary PROVIDED that in the event of early separation  from the services of the Company, a pension may be  granted at the sole discretion of the Company calculated  at such rate as may be decided by the Company."

Provided further in the event of such employee leaving  the service of the Company after completion of two years  of service with mutual consent and does not have any  adverse records of his performance shall be paid a  monthly pension which shall be not less than 50% of his  last drawn salary nor shall it exceed 100% of such  salary."

       The said amendment was made with retrospective effect.  However, it  was sought to be deleted by a deed of  variation dated 25.09.2000 from  01.04.1997, which again in terms of another deed of variation dated  28.03.2001 was sought to be given a retrospective effect from 01.04.1995.  

        Respondent No. 3 herein was the Managing Director of the  Company.  Admittedly, he has filed a suit for realization of an amount of  pension quantified at Rs.45 lacs.  Two other suits by two other members of  the  Fund are also admittedly pending.   

       The Company became  sick.  It was declared as such by the Board of  Industrial Financial Reconstruction on or about 22.01.1988.   

       Allegedly, three other funds were  created by the Company in the year  2001, known as (i) ’Dunlop Administrative Executive Staff Pension Fund’,  (ii) ’Dunlop Sahagunj Executive Staff Pension Fund’, and  (iii) Dunlop  Ambattur Executive Staff Pension Fund’.  The details whereof or the  purpose for which the same were constituted is not known.     

PROCEEDINGS :

       An application was filed by the trustees of the said trust before the  High Court of Calcutta purported to be under Section 34 of the Act, alleging,  inter alia, that the purpose of the trust has been completely fulfilled and/or

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trust has been completely executed without exhaustion of the trust property  to the extent of Rs.3,99,55,682/-.   In the said application, inter alia, the  following prayer was made :

"a) Appropriate direction and/or advise and/or opinion be          given by this Hon’ble Court with regard to the sum of          Rs. 20,83,95,690/- and accrued interest lying in Special          Deposit Account No. 3/76."

                        In the said proceeding, only Respondent No.1 herein was made a  party in a representative capacity.  It was contended that out of 186  employees who were eligible to receive pension fund, 140 employees  consented that the surplus amount be refunded to the Company.  In the said  proceeding, an application seeking leave was filed under Order 1 Rule 8 of  the Code of Civil Procedure, which was allowed by an order dated  19.10.2001.  Respondent No.3 herein filed an application for getting himself  impleaded as a party which was allowed.  By a judgment and order dated  23.12.2004, a learned Single Judge of the Calcutta High Court while holding   that the said application under Section 34 of the  Act was maintainable,  opined that the payment of pension was to be made not only to the existing  members but also to the widow and dependents in terms of the extant rules.   It was held that only because in terms of the advertisement issued in two  newspapers,  namely,  a Bengali Daily \026 ’Aaj Kal’ and an English Daily \026  ’Financial Express’, consent of all the members could not be held to have  been impliedly obtained only because numerous dependents had not  appeared.  Inter alia, on the aforementioned premise, the application was  dismissed.   

       On an intra-court appeal, a Division Bench of the said Court by reason  of the impugned judgment although opining that a Letters Patent appeal was  not maintainable, went into the merit of the matter and dismissed the same,  holding :

"After analysing those clauses in our opinion, the trust  shall be irrevocable one and no moneys belonging to the  funds in the hands of the trustees shall be recoverable by  the company nor shall the company have any lien or  charge of any description to the same.   Therefore, we are  sure that the purpose of the trust exists and/or remains  valid until the last surviving employees receive its benefit  out of the trust fund and furthermore, under Clause 3 of the  said Trust Deed funds lying in the hands of the said  trustees are not coverable by the company nor the  company shall have any lien or charge of any description  on the said trust fund.   Therefore, we do not have any  hesitation to hold that no opinion can be expressed by the  Court that the amount so lying in the hands of the trustees  can be recoverable by the company or may be transferred  in any manner to the company.   Therefore, we are not in a  position to accept the contention of Mr. Sarkar that during  the financial stringency they shall have the right to utilize  the said fund and the amount lying in the said trust fund  can be transferred to the company for meeting its  liabilities.   After scrutinizing the Clauses of the said Trust  Deed we have come to the conclusion that the purpose of  the trust exists and remains valid until the last surviving  employees receive its benefits out of the said trust fund.    We do not have any hesitation also to express our opinion  as His Lordship expressed in His Lordship’s decision that  the trust exists and we also have to accept the contention of  Learned counsel appearing on behalf of the respondent in  the instant case that the instance case is squarely covered  under the Illustration (b) of Section 56 of the Indian Trust

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Act and the trustees are bound to fulfil the purpose of the  trust and to obey the directors of the author of the trust,  except if any modification is made by consent of all the  beneficiaries, being competent to contact.   It appears to us  that in the guise of getting an opinion from the court, the  company thought it fit to extinguish the trust in question  and the amount lying in the hands of the trustees in respect  of the said fund to have a lien over the same to utilize the  same which is totally barred under Clause 3 of the said  Trust Deed\005"                   

SUBMISSIONS :

       Mr.R.F. Nariman, the learned Senior Counsel appearing on behalf of  the appellants,  principally raised the following contentions in support of this  appeal :

(i)     The power of the principal Civil Court of original jurisdiction being          not only limited to opinion or  advice, but also to issue directions, the          High Court      wrongly refused to exercise its jurisdiction, although          Section 83  of  the Act was squarely attracted.   (ii)    The expression ’principal Civil Court of original jurisdiction’          contained in Section 34 would   also attract the  principles of res          judicata.   

(iii)   Such direction can be issued, inter alia, in terms of Section 83 of the          Act, as it  would come  within the purview of the term          ’administration of      trust property’;

(iv)    The terminology ’detail, difficulty or importance’ contained in          Section 34 of the Act refers to the power of the court for summary          disposal and not for exercising its discretionary jurisdiction of the          court.          (v)     Such opinion, advice or direction if issued would be a judgment          within the meaning of Clause 15 of the Letters Patent of the Calcutta          High    Court and, thus, a Letters Patent appeal would be maintainable.

(v)     Respondent No.3 being not a member of the Fund had no locus standi          to main the     application.

       Mr. Rakesh Dwivedi, the learned Senior Counsel appearing on behalf  of Respondent No.3, on the other hand, would submit :

(i)     Operation of Section 34 being related to the ’management’ or          ’administration’ of the trust property; matters which come within          the purview     of extinction of the trust as contained in Chapters VIII of          the Act,  would not come with the purview thereof.

(ii)    Section 34 has a limited application keeping in view the exclusionary          clause contained in the expression "other than questions of detail,          difficulty or importance, not proper in the opinion of the court for          summary disposal" and, thus, the courts below rightly refused to          exercise their jurisdiction in the matter.   

(iii)   The learned Single Judge as also the Division Bench of the High          Court having found difficulties in the matter as also in view of the          importance      of the question having refused to exercise the          discretionary  jurisdiction, this Court should not interfere    therewith.   

(iv)    The term ’opinion, advice or direction’ would not confer a jurisdiction          to  finally decide the rights of the persons interested in the trust.

RELEVANT STATUTORY PROVISIONS  :

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       Sections 11, 56, 77 and 83, which are relevant for the purpose of this  appeal, read as under :   

"11.  Trustee to execute trust.- The trustees is bound to  fulfil the purpose of the trust, and to obey the directions  of the author of the trust given at the time of its creation,  except as modified by the consent of all the beneficiaries  being competent to contract.

Where the beneficiary is incompetent to contract, his  consent may, for the purposes of this section, be given by  a principal civil court of original jurisdiction.

Nothing in this section shall be deemed to require a  trustee to obey any direction when to do so would be  impracticable, illegal or manifestly injurious to the  beneficiaries.

Explanation. -  Unless a contrary intention be expressed, the  purpose of a trust for the payment of debts shall be deemed  to be (a) to pay only the debts of the author of the trust  existing and recoverable at the date of the instrument of  trust, or, when such instrument is a will, at the date of his  death, and (b) in the case of debts not bearing interest, to  make such payment without interest."

"56.  Right to specific execution. \026 The beneficiary is  entitled to have the intention of the author of the trust  specifically executed to the extent of the beneficiary’s  interests.

Right to transfer of possession. \026 And, where there is only  one beneficiary and he is competent to contract, or where  there are several beneficiaries and they are competent to  contract and all of one mind, he or they may require the  trustee to transfer the trust-property to him or them or to  such person as he or they may direct.

When property has been transferred to bequeathed for the  benefit of a married woman, so that she shall not have power  to deprive herself of her beneficial interest, nothing in the  second clause of this section applies to such property during  her marriage."

"77.-Trust how extinguished. \026 A trust is extinguished \026

   (a)  When its purpose is completely fulfilled; or

   (b)  When its purpose becomes unlawful; or

   (c)  When the fulfillment of its purpose becomes  impossible by destruction of the trust-property or otherwise;  or  

   (d)  When the trust, being revocable, is expressly  revoked."

"83. Trust incapable of execution or executed without  exhausting trust-property. \026  Where a trust is incapable of  being executed, or where the trust is completely executed  without exhausting the trust-property, the trustee, in the  absence of a direction to the contrary, must hold the trust- property, or so much thereof as is unexhausted, for the  benefit of the author of the trust or his legal representative."

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APPLICATION OF LAW :

       The jurisdiction of the court under Section 34 admittedly is confined  to opinion, advice or direction.  An application would be maintainable on  any present questions.  Such questions must arise "respecting the  management or administration of the trust property".  The questions should  not be of any ’detail, difficulty or importance or otherwise not proper in the  opinion of the court for summary disposal’.

       Copy of the application must be served upon the persons interested in  the application.  If an opinion is rendered, or advice is given, or a direction is  issued, the same shall be deemed, so far the trustee is concerned, in regard to  his own responsibility to have discharged his duty as such trustee in the  subject-matter of the application.

       It may be that such an application may be filed without instituting a  suit but maintainability of such an application would mainly depend upon  the nature and purport thereof.  Merely an option has been conferred on a  trustee to file either a suit or to move the court for its opinion, advice or  direction in terms of Section 34 of the Act.   Such an option can be exercised  only when recourse to both the remedies are available.  

       We may proceed on the basis that the jurisdiction of the court is not  only confined to opinion or  advice  but also extends to issuance of direction,  but such opinion rendered, or advice given or direction issued only to a  trustee.  Consequence of issuance of such a direction is also stated in  paragraph 3 of Section 34 in terms whereof a legal fiction is created by  reason whereof the trustee would be deemed to have discharged his  obligation in regard to his own responsibility in the subject-matter of the  application.  It does not envisage an adjudication.  It does not  ordinarily  envisage determination of the right, title or interest of a member of the trust  or a beneficiary in relation to the trust property, although such a question  may have to be incidentally dealt with.   

       The provisions of Section 34 of the Act must be given its literal  meaning.  The court cannot exercise a jurisdiction which is not vested in it.   A court can exercise jurisdiction, provided it is vested therewith.  An order  without jurisdiction over the subject-matter would render the decision a  nullity.   

       Construction of the aforementioned provision which is in pari materia  with Section 10(1) of the Official Trustees Act, 1930 came up for  consideration before this Court in Official Trustee, West Bengal and Others  v. Sachindra Nath Chatterjee and Another  (1969) 3 SCR 92 : AIR 1969 SC  823].  Therein, it was clearly held that in terms of Section 33 of the Act,  the   rate of interest cannot be directed to be altered, stating :

"21.  It was then said that the order in question could have  been made by Ramfry, J., in the exercise of his inherent  powers as  a Judge sitting on the original side of the Calcutta  High Court.   It was argued that a Judge sitting on the original  side of the High Court of Judicature at Calcutta has all the  powers of a Chancery Judge in England as that power has  been conferred on him by the Letters Patent granted to that  High Court.   We shall assume it to be so.    We may note that  the settler did not invoke the inherent jurisdiction of the High  Court nor did the Judge purport to exercise that power.  But,  still, that cannot invalidate the order made if the Court had the  inherent jurisdiction to make that order.   Hence the real  question is had he that inherent jurisdiction?   Chapter XIII of  the Calcutta High Court Rules prescribes what orders can be  obtained in an originating summons proceedings.   The  jurisdiction of the Judge acting under that Chapter is a

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summary jurisdiction.   Rule 1 of that Chapter empowers the  Judge to entertain an application in respect of matters  enumerated in clauses (a) to (g) of that rule.   Admittedly  clauses (a), (b), (f) and (g) are not relevant for our present  purpose.   Under clause (c) the Court could only decide about  furnishing of any particular accounts by trustees and vouching  (where necessary) of such accounts.   Under cl. (c) it could  direct the trustees to pay into Court any monies in his hands  and under clause (e) direct him to file an account and vouch  the same to do or abstain from doing any particular act in his  character as a trustee. The orders under Chapter XIII are made  in chambers.   As mentioned earlier the proceedings under  that Chapter are summary proceedings.   No rule in that  Chapter was brought to our notice under which the order in  question could have been made.

               xxx                     xxx             xxx

25.   It will be noticed that the powers given under those four  heads are those relating to management and administration of  trust property.   That power is similar to the power conferred  in Courts by Sec. 34 of the Trusts Act and S. 43 of the  Trustees and Mortgagees Powers Act, 1866.   In fact in this  country we have condified the very powers that were  exercised by the Chancery Courts in England under their  equitable jurisdiction.   The Court of Appeal in Chapman’s  case, 1953-1 Ch 218 Evershed M.R. and Romer . JJ., Denning  L. J. dissenting stated the law on the point thus:

       The inherent jurisdiction of the Court of Chancery is of  a limited character.   It is a jurisdiction to confer upon the  trustee, quoad items of trust property vested in them,  administrative powers to be exercised by them where a  situation has arisen in regard to the property creating what  may be fairly called an "emergency".   The inherent  jurisdiction does not extend to sanctioning generally the  modification or remoulding of the beneficial trusts of a  settlement.

               xxx                     xxx                     xxx                  27.   From whatever angle we may examine the validity of the  order made by Ramfry, J., it appears clear to us, that the said  order was outside the jurisdiction of the learned Judge.   It  was not merely a wrong order, or an illegal order, it was an  order which he had no competence to make.   It is not merely  an order that he should have not passed but it is an order that  he could not have passed and therefore a void order."                                        Section 34 occurs in Chapter IV titled "Of the rights and powers of  trustees" beginning from Section 31 relating to ’right to title deed’ to Section  45 relating to "Suspension of trustee’s posers by decree’.  Chapter VIII, on  the other hand, provides for extinction of trusts.  Chapter IX relates to  matters pertaining to certain obligations in the nature of trusts.   

       The right of a member of a trust to receive pension poses a difficult  question.  It may  also pose a  question of importance, keeping in view the  fact that by reason thereof, the obligation of the trustee would come to an  end.  It  is one thing to say that an advice, opinion or direction can be made  respecting the administration of the trust; but what that means would  evidently depend upon the terms of the trust deed.   

       We have noticed hereinbefore that Part II of the trust deed lays down  the mode and manner in which the trust properties are to be administered.  It

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does not lay down a right on the part of the trustee to put an end his  right to  get himself discharged from his obligation.  If for some reason or the other,  it is contended by the trustee that the trust stand extinguished, any remedy in  respect thereof must be found within Chapter VIII of the Act and not  otherwise.

       Similar provisions exist in the Official Trustees Act, 1930, Section  302 of the Indian Succession Act, 1925 and Section 7 of the Charitable and  Religious Trusts Act, 1920.                  The courts of India have all along held that their jurisdiction, in this  behalf,  is limited.  In any event, it is for the court concerned to arrive at an  opinion as to whether the questions posed are matters of detail, difficulty or  importance.  Summary jurisdiction would not be exercised in the event the  exclusionary clause comes into operation.   

       We will assume for the time being that the application under Section  34 of the Act was maintainable.  The court, however, keeping in view the  number of persons who would be entitled to oppose the prayer of extinction  of trust, would decline to exercise its jurisdiction.  Interpretation of the trust  deed furthermore is a question of importance.  It is also a matter of detail in  the proceeding as to whether the trustees have been able to discharge their  entire liabilities.   

       The Division Bench of the High Court, as noticed hereinbefore,  opined that the trust is an irrevocable one.  It may or may not be correct; but  the question posed admittedly is a difficult one and if for the said purpose it  had refused to exercise its discretionary jurisdiction, in our opinion, no fault  can be found therewith.

       We have also some difficulty in appreciating the submissions of Mr.  Nariman that all the members of the trust must be deemed to have consented  to the extinction of the trust on the ground that the purpose of the trust had  been fulfilled.

       Admittedly, three suits are pending. It is, thus, not correct to contend  that all the beneficiaries of the trust have been paid off.  The power of the  Company to make rectification of the terms and conditions of the trust vis-‘- vis the power of the trustees to revoke the same with retrospective effect is a  matter which is pending consideration in a court of law.  No final opinion  can be rendered in that behalf.  

       If the terms and conditions of the trust are to remain in operation in  view of clause 3 of the Deed of Trust, it is really difficult for us to  comprehend as to why three more trusts were created.  The purpose for  which the same had been created and the trustees had been asked by the  Company to pay back the balance amount to the Company for its  rehabilitation is a tell tale  one.  Bona fide of the trustees in moving such an  application is suspect.  The trustees intended to pay a huge sum of Rs.20  crores to the Company for its revival.  Once it is revived, the employees who  are existing would continue and new employees may also be appointed.  It  is, therefore, difficult for us to comprehend the stand of the trustees that as  the Company had been declared sick by the BIFR, the same would lead to an  irresistible conclusion that no further employee would be appointed.  The  contention of the trustees appears to be fallacious.  Once the Company had  taken recourse to the provisions of the Sick Industrial Companies (Special  Provisions) Act, 1985, an operating agency must have been appointed and  even without aid and assistance of all the trustees scheme(s)  might  have  been framed by the operating agency for revival of the Company.  How and  in what manner the BIFR or for that matter AIFR intended to proceed the  matter is one which falls within the jurisdiction of the authorities created  under the SICA.  The Civil Court will have no say in the matter.

       Submission of the learned counsel that in this case Section 83 is  squarely attracted cannot be appreciated for more than one reason.  Firstly,

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because it is a seriously disputed question of fact.  Secondly, the court  exercising its summary jurisdiction for the purpose of giving advice, opinion  or direction cannot finally determine the rights and obligations of the  trustees vis-‘-vis the State on the one hand and the beneficiary thereof on the  other.  Thirdly, even if a few persons opposed extinction of the trust, the  same itself should be treated to be sufficient for the court to refuse to  exercise its summary jurisdiction under Section 34 of the Act.                  Strong reliance has been placed by Mr. Nariman on Prince  Muffakham Jah Bahadur and Others v. H.E.H. Nawab Mir Barkat Ali Khan  Bahadur Prince Mukarram Jah and Others   [(AIR 1989 AP 68].  Therein, a  Division Bench of the Andhra Pradesh High Court categorically held that  there was no opposition.  It was found as of fact that the First Respondent  would stand to gain if the trust is dissolved which would be beneficial to all  the trustees.  The court was in the fact situation obtaining therein was not  required to go into the question of maintainability of the application under  Section 34 of the Act.  It is, however, interesting to note that in Para 15, it  was noticed :

"At Page 514 of Underhill’s Law of Trusts Trustee, Twelfth  Edition, Art. 68 runs as follows :-

"If there is only one beneficiary, or if there are  several (whether entitled concurrently or  successively) and they are all of one mind, and he or  they are not under any disability (a), the specific  performance of the trust may be arrested, and the  rust modified or extinguished by him or them  without reference to the wishes of the settler or the  trustee."

We think that approval and arrangement is a matter of judicial  discretion depending upon the facts of each case.   The Court  must be satified that each beneficiary is getting a substantial  advantage.  We do not think that there can be any objection for  an arrangement when its object is to avoid fiscal burden."                           The Andhra Pradesh High Court categorically opined that whether  approval and arrangement should be granted or not is a matter of judicial  discretion depending upon the facts of each case and the court must be  satisfied that each beneficiary is getting a substantial advantage.   Unfortunately, attention of the High Court was not drawn to this Court’s  decision in  Sachindra Nath Chatterjee (supra).  It is, therefore, not an  authority for the proposition that such a direction can be issued in all  situations.

       Reliance has also been placed on Sahebzadi Amina Marzia v. Syed  Mohd. Hussain and Others [AIR 1981 AP 340], wherein a direction was  issued to sell a portion of the property, having regard to the wealth tax  liability which could not be made otherwise.  The same was found to be in  the interest of the beneficiaries as the said jewelleries were not to be of much  use.

       We may, however, notice that in Hasan Bin Mubarak v. Chief Judge,  City Civil Court, Hyderabad and Others  [AIR 1999 AP 11], the same High  Court  held : "\005Section 34 of the Act contemplates only a summary  disposal on non-controversial issues. The mental  condition of a person being an important personal  problem, the Court cannot dispose of the same in a  summary manner. What the Court below has done was to  examine 3rd respondent, who is alleged to be an insane  person and give the opinion on the basis of her statement.  Though Ex.R-1, certificate, alleged to have been given by  a psychiatrist, was marked, the Court made no effort to

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examine the said doctor. Obviously, this could not have  been done because the matter has to be disposed of in a  summary manner. Thus, it is evident that the advice that  was sought for by the trustee required a determination on  contentious facts and the jurisdiction of the Court under  section 34 being only in the nature of giving guidelines  or directions without entering into the merits, the  application ought not to have been entertained by the  Court. The trustee might have got a valid and satisfactory  opinion had he approached a qualified medical man or  the Court in a properly instituted suit. 23. In Avoch Thevar case (supra) following the decision  in Armugan Chetty vs. Raja Jagaveera ILR 28 Madras  444, it was clearly held that while providing the trustees a  right to apply to the Court for opinion to the Management  and the Members, Section 34 embodied at the same time,  a limitation governing the questions to be asked viz. that  there should not be hypothetical and any questions of  details or difficulty or importance, not proper in the  opinion of the Court for summary disposal. None of the  passages quoted or citations relied upon by the learned  counsel for the respondents came to his assistance."

       Yet again in Krishen Kumar Khosa v. Krishen Lal and Others [AIR  1979 J&K 13], it was held :

       "From a bare perusal of the petition it becomes  obvious that the petitioner is not in possession of the  Trust property but is desirous of getting himself declared  a trustee in opposition to respondent No. 1 who  according to him, has usurped his functions to which he  was entitled to under the Guru Jeer’s alleged will.   Obviously the petition was not for seeking any advice,  opinion or direction from the court.  It raised questions of  difficulty detail and of importance which not be disposed  of in summary proceedings as one at hand.  Mr. Gupta  has vehemently argued that he was entitled to seek the  direction from the court which would according to him  include even a declaration to the effect that it was in fact  the petitioner who was the trustee and not respondent  No.1.  He has cited some authorities such as AIR 1953  Nag 89 (FB), AIR 1965 SC 342, and AIR 1966 SC 81 in  support of his contention that the expression "direction"  means and includes an order of the court and does not  merely mean an advice or opinion.  On a perusal of these  judgments I am however, of the view that the expression  ’direction’ as used in the Trusts Act has entirely a  different meaning than the meaning that may have been  given to it in various other enactments discussed in the  above said judgments.  Though Mr. Gupta has remarked  the interpretation laid down on the expression "opinion,  advice, and direction" appearing in S. 34 of the Trusts  Act in Muhmmad Hashim Gazdar, AIR 1945 Sind 81  (FB) and AIR 1934 Oudh 118 (2) being the interpretation  laid down  long ago and therefore not applicable to the  situation prevailing in 1978, yet I am of the view that the  meaning of the expression used in Sec. 34 of the Trusts  Act having been directly at issue in the said judgments,  the interpretation placed in the said judgments, on this  expression was not only appropriate and correct at the  time of the passing of the said judgments but still  continue to be the only interpretation that may possibly  be given.  In AIR 1945 Sind 81 (supra) it has been laid  down as follows :

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       "The words "opinion, advice or direction" in  Sec. 34 Trusts Act, must be read together as  meaning nothing more than guidance.  Under   S.  34 the Court exercised what may be called its  consultative jurisdiction,  giving guidance to a  trustee who presumably asks for it, because he  wants it and intends to follow it, Section 34 is  intended to enable a trustee to obtain the Court’s  guidance in suitable matters for his protection.   The advice, opinion or direction given under Sec.  34 is not an order binding on parties and  disobedience to it does not involve committal for  contempt\005."    

       Strong reliance has been place on Smt. Nilima Ghosh and Another v.  Prakriti Bhusan Mitter [AIR 1982 Cal. 14], wherein it was categorically held  that when an application was filed under Section 90 of the Code of Civil  Procedure, the court would  be justified in refusing to answer the question as  the matter should have been referred to court specified in Section 34 of the  Act, stating the said decision was rendered, inter alia, on the premise that  the court of principal Civil Court is a court of superior jurisdiction to that of  a Subordinate Judge.  We need not pronounce on the correctness or  otherwise of the said decision; but we may notice that such observations  were made having regard to the development and preservation of the trust  property in question and not for any other purpose.   

       Whereas a direction to sell a portion of the trust property may be  issued for the benefit of the trust as also the beneficiary thereof and not for  preservation of the property, in our opinion, the same test cannot be applied  for the purpose of obtaining in truth and substance an order of extinction of  the trust.  The two reliefs are absolutely different.

       We, therefore, are of the opinion that no case has been made out for   our interference with the impugned judgment.  We need not make our  comments with regard to the maintainability of the Letters Patent appeal, as  Mr. Dwivedi conceded that such an appeal would be maintainable.

       It is well-settled that if the jurisdiction of a court in relation to the  subject-matter thereof is limited, any decision rendered by it would be a  nullity.   In such an event, even the principle of res judicata will have no  application [See Official Trustee of West Bengal v. Stephen Court Ltd. -  2006 (14) SCALE 285 and Harshad Chiman Lal Modi v. DLF Univesal Ltd.  and Another \026 (2005) 7 SCC 791]

       It is interesting to note that in Sachindra Nath Chatterjee (supra),  Hegde, J. was  clearly of the opinion that where the relief cannot be granted  keeping in view the limited jurisdiction of the court,  in relation thereto the  court will have no jurisdiction.  But it is of some significance that the  jurisdiction of the court must be determined in a case of this nature having to  the purport and object for which such jurisdiction is conferred.  A wider  jurisdiction thereunder is not contemplated.  

       It is also well-settled that when a court refuses to exercise its  discretionary jurisdiction, normally an appellate court shall not interfere  therewith.  [See Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa  and Others \026 (2003) 10 SCC 390].

       Article 142 of the Constitution of India in a case of this nature may  not be invoked, particularly when this Court is exercising its appellate  jurisdiction.  If the High Court had no jurisdiction to entertain the  application and in any event having regard to the fact that both the learned  Single Judge as also the Division Bench of the High Court had not exercised  their discretionary jurisdiction, in my opinion, it is not a case where  jurisdiction under Article 142 of the Constitution of India should be invoked  particularly in view of the fact that the appellant is not remediless.  It can file

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a suit.  It can take recourse to other remedies which are available in law.           The appeal, therefore,  being devoid of any merit is dismissed.   In the  facts and circumstances, however, there shall be no order as to costs.