N Criminal Appeal Nos
657 58 of 1986
From the Judgment and Order dated 1321986 of the High Court of Bombay in Criminal Application No 120 of 1984
Dr LM Singhvi Ram Jethmalani Dalveer Bhandari Mrs Madhu Bhandari SS Khanduja AM Khanwilkar and AS Bhasme for the Appearing parties
The Judgment of the Court was delivered by RANGANATH MISRA J
Both the appeals are by special leave and are directed against the same judgment of the Bombay High Court on an application under section 482 of the Code of Criminal Procedure
The High Court by the impugned decision quashed the prosecution against two of the four accused persons
The two accused persons whose prosecution has not been quashed are appellants in Criminal Appeal No 657 of 1986 while the complainant assails the decision of the High Court quashing the prosecution of the two accused persons in Criminal Appeal No 658 of 1986
Rajamata Smt
Vijaya Raje Scindia of Gwalior created a trust on 23rd of February 1966 known as Srikrishna Madhava Trust with four trustees in all including the settler the other three trustees being Mr Madhavrao Jiwajirao Scindia Col Eknath Trimbak Patil and Kumar Shanbhajirao Chandrojirao Angre
Madhavrao is the son of the settler while the other two though residents of Gwalior are not members of the family Vijay Vilas  a large house located in the Bombay city constituted a part of the trust property
Russi Homi Awary and Damodar Rangrppa Shenoy respondents in Criminal Appeal No 658 of 1986 were employed as Secretary and Manager respectively of the Trust between 1976 and 1982
Flat No 15 of Vijay Vilas  was in the occupation of the Sushiladevi Kathait on tenancy basis
In June 1981 the said tenant surrendered the tenancy and on 9th of June 1981 the 933 Secretary issued a certificate to the effect that the tenancy had terminated
On 31st of March 1982 the said Secretary issued another certificate to the effect that the aforesaid tenancy terminated with effect from 1st April 1980 after the entire rental liability had been liquidated
On the allegation that the two officers of the Trust in conspiracy with trustee Madhavrao and his wife Smt
Madhavi had created documents showing tenancy in respect of that flat in favour of Smt
Madhavi a complaint was filed by trustee Angre in the Court of the Metropolitan Magistrate 28th Court Esplanade Bombay on 27th July 1983
Summons were directed to be issued against the four persons referred to above for offences punishable under sections 406 467 read with sections 34 and 120 B of the Indian Penal Code
The accused persons challenged the proceedings before the High Court by filing an application under section 482 of the Code and prayed for quashing of the criminal case
By the impugned order dated 13th February 1986 the High Court quashed the proceedings so far as accused Nos 2 and 4 were concerned but sustained the order of the Metropolitan Magistrate in regard to the remaining two accused persons
Hence these appeals have been filed as already stated
The settler and the accused being mother and son an attempt was made to bring about a settlement but that having failed the appeals have been heard on merit and are being disposed of by this common judgment
Dr Singhvi learned counsel appearing for the accused appellants has contended that the criminal proceedings are without any basis and if at all a civil wrong may be said to have been caused
According to him the trust deed authorised trustee Madhavrao to look after the affairs of the Trust
The flat had been tenanted at a particular rent when the tenant vacated and a new tenant had to be inducted it being the common case that the flat was intended for tenancy Madhavi wanted to be the tenant and at the rate of rent which the outgoing tenant was paying a new tenancy was created
Under the law applicable to tenancies in Bombay a higher rent is not chargeable and as such no higher amount of rent could be claimed by the Trust in regard to the flat
The wife of the trustee is an independent person having her own income and the tenancy in favour of Madhavi cannot be considered to be creating an interest in favour of the trustee
Dr Singhvi further relied upon a lawyer s notice issued on behalf of the trust calling upon Madhavi to surrender the tenancy in favour of the Trust failing which action was threatened
Madhavi volunteered to surrender the tenancy and thus there was really no 934 justification according to Dr Singhvi for initiating criminal proceedings
In the facts and circumstances of the case narrated above the appellants  counsel contended that there was no mens rea for the offences as alleged and at the most it amounted to a civil wrong
He argued that the mother and the son had fallen out and on that score the machinery of the Court should not be permitted to be utilised for private vengeance
Mr Jethmalani appearing for the complainant on the other hand maintained that it was a clear case of breach of trust and according to him every breach of trust would simultaneously be a civil wrong and a criminal offence and if summons have been issued by the Metropolitan Magistrate on the basis of the complainant s allegations no objection could be taken at the preliminary stage
It is appropriate that the complainant should be given an opportunity to establish his case by leading evidence
He relied upon the provisions of section 53 of the Indian Trust Act which provides No trustee and no person who has recently ceased to be a trustee may without the permission of a principal Civil Court of original jurisdiction buy or become mortgagee or lessee of the trust property or any part thereof and such permission shall not be given unless the proposed purchase mortgage or lease is manifestly for the advantage of the beneficiary
 We have considered the relevant documents including the Trust deed as also the correspondence following the creation of the tenancy
We have also kept in view the submissions advanced on behalf of the parties by their respective counsel
We have further taken into consideration the natural relationship between the settler and the son and his wife and the fall out
The legal position is well settled that when a prosecution at the initial stage is asked to be quashed the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence
It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue
This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and therefore no useful purpose is likely to be served by allowing a criminal prosecution to 935 continue the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage
Mr Jethmalani has submitted as we have already noted that a case of breach of trust is both a civil wrong and a criminal offence
There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence
We are of the view that this case is one of that type where if at all the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting
Several decisions were cited before us in support of the respective stands taken by counsel for the parties
It is unnecessary to refer to them
In course of hearing of the appeals Dr Singhvi made it clear that Madhavi does not claim any interest in the tenancy
In the setting of the matter we are inclined to hold that the criminal case should not be continued
Criminal Appeal No 657 of 1986 is allowed and the criminal prosecution against the two appellants being Madhavrao and Russi Homi Avari is quashed
In view of what we have stated above Criminal Appeal No 658 of 1986 has to fail and is dismissed
NPV Appeal dismissed


Summary:
 The property in dispute was sold by its original owner to the respondent
Claiming that there was a local custom under which the tenant in occupation of a building had a right of pre emption the tenant of a portion of the property filed a suit for pre emption and valued the portion at Rs10000
The suit was opposed by the respondent contending that there was no such customary law and that in case the decree was passed the plaintiff should be asked to pay Rs20000 as consideration
During the pendency of the suit the plaintiff tenant died and the appellants his legal representatives filed an application under Order 22 Rule 3 of Civil Procedure Code for being brought on record in place of the original plaintiff and for permission to prosecute the suit further
The respondent opposed the application contending that the right of pre emption even if it existed was only a personal right of the tenant and was not heritable and consequent on his death the right to sue did not survive and therefore the suit was liable to be dismissed
Aggrieved by the aforesaid order the respondent filed a revision petition before the High Court which allowed the same following a Full Bench decision of that Court in Chandrup Singh and Anr
vs Data Ram and Anr 1985 Punjab Law Reporter 771 that a statutory right of pre emption resting only on blood relationship created by section 151 of the Punjab Pre emption Act 1913 was not a heritable one and did not devolve on the heirs on the death of the pre emptor before the grant of 896 the decree in the suit and declared that the suit instituted by the tenant had abated on his death
Allowing the appeal  HELD While a right of pre emption does not give right to an interest in immovable property the right of tenancy itself was heritable and therefore every right attached to the said right of tenancy or incidental to it should ordinarily be heritable
There can be no distinction between the right of pre emption arising under the statutory law and the customary law
900F H In the instant case the plaintiff had acquired the said right of pre emption under customary law by virtue of right of tenancy which he had in the portion of the property in his possession and had instituted a suit for enforcing that right
The fact that the pre emptor had died at the trial stage cannot make any difference
900G The right to sue therefore survived on the death of the plaintifftenant in favour of the appellants who were his legal representatives and they were entitled to be brought on record in substitution of the original plaintiff tenant under Order 22 Rule 3 of the Civil Procedure Code
902B C The trial court was directed to bring the appellants on record as legal representatives of the deceased plaintiff and to dispose of the suit on merits
902C Chandrup Singh and Another vs Data Ram and Another 1982 Punjab Law Reporter 771 over ruled
Hazari  Ors
vs Neki  Ors
   followed
Wajid Ali  Anr
vs Shaban  Ors
 ILR 31 Allahabad 623 approved
Muhammad Husain vs Niamet un nissa and Ors ILR 20 Allahabad 88 distinguished
Faqir Ali Shah vs Ram Kishan  Ors 133 PR 1907 referred to