IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 10680 of 2010(O) -------------------------- OP.271/2008 of ADDL. DISTRICT COURT-II, KOZHIKODE .................... PETITIONER(S): --------------------- 1. SNEHASAGAR CHARITABLE TRUST,OFF:5/513, ARUNODAYAM VAYANASALA BLDG.,P.O.PAYIMBRA, KURUVATTOOR,KOZHIKODE,REP. BY ITS SECRETARY-CUM- FOUNDER MEMBER OF DR.MARGERET MARCY POULOSE D/O.ANTONY,61 YEARS,R/AT.LORDES COTTAGE,NAYANAR BALIKASADANAM ROAD,P.O.CIVIL STATION,KOZHIKODE-20. 2. A.VASU, S/O.APPU, AGED 78 YEARS, RESIDING AT VARGHESE SMARAKA BOOK STALL, NELLIKODE AMSOM DESOM, KOZHIKODE TALUK. 3. A.KESAVAN NAIR, S/O.CHINNAMMU AMMA, AGED 81 YEARS, RESIDING AT SREENIKETHAN, KUNNAMANGALAM AMSOM, DESOM OF KOZHIKODE TALUK. 4. T.RADHAKRISHNAN NAMBIAR, S/O.ITTICHIRA AMMA, AGED 71 YEARS, RESIDING AT "SWAPNA NIVAS", VENGERI AMSOM, DESOM OF KOZHIKODE TALUK (DIED). 5. T.V.MADHAVAN NAIR, S/O.UNNERI NAIR, AGED 68 YEARS, RESIDING AT "JUNCTION VIEW", IN PANNIYANKARA AMSOM AND DESOM OF KOZHIKODE TALUK. 6. P.BALAKRISHNAN NAIR, S/O.RAGHAVAN NAIR, AGED 67 YEARS, RESIDING AT "SREEVIHAR" IN KUNNAMANGALAM AMSOM AND DESOM OF KOZHIKODE TALUK. 7. K.SREEDHARAN, S/O.KORAN KUNNATH, AGED 72 YEARS, RESIDING AT KUNNATH HOUSE IN KUNNAMANGALAM AMSOM AND DESOM OF KOZHIKODE TALUK. 8. V.M.DASAN, S/O.APPU, AGED 70 YEARS, RESIDING AT VENCHERI MEETHAL HOUSE IN KUNNAMANGALAM AMSOM AND DESOM OF KOZHIKODE TALUK. 9. K.K.SAHADEVAN, S/O.K.K.CHOYI, AGED 58 YEARS, RESIDING AT "POKKANCHERY HOUSE" IN NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK. 10. K.V.RAJAN, S/O.UNNIKRISHNAN, AGED 57 YEARS, RESIDING AT "POKKANCHERY HOUSE", IN NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK. 11. DR.MARGERET MARY POULOSE, D/O.ANTONY, AGED 61 YEARS, RESIDING AT LORDES COTTAGE, NAYANAR BALIKASADANAM ROAD, P.O.CIVIL STATION, KOZHIKODE-20. BY ADV. SRI.N.M.MADHU SMT.C.DEVIKA RANI KAIMAL RESPONDENT(S): ----------------------- NIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8/04/2010, THE COURT ON 18/05/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 10680 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of May, 2010. JUDGMENT The prayer made in this writ petition is that permission be granted to the first petitioner Trust to sell an item of property for raising funds for construction of buildings. 2. The first petitioner is a charitable trust. Petitioners 2 to 11 are the trustees of the trust. The trust was constituted with the object of providing care and shelter to aged persons. An extent of 29.40 cents of property in Sy. No.105/2 in Kuruvattoor Amsom Payimbra Desom in Kozhikode Taluk was purchased by the trust for the purpose of constructing a building to run the old age home. The vendor of that property, attracted by the object of the trust, gifted a further extent of 5 cents adjoining to the 29.40 cents. This combined block of WPC.10680/2010. 2 34.4 cents is situate on the bank of a river and is very suitable and appropriate for running an old age home. But construction could not be started due to paucity of funds. 3. It appears that another well wisher of the trust namely, on Pokkanchery Swamikutty had bequeathed an extent of 33.07 cents in Re.Sy. Nos.78/14 and 80/1 of Nellikode Amsom Desom in Kozhikode Taluk in favour of the trust. This property is within the Kozhikode town limits. The trustees formed an opinion that they can sell that property and utilize the funds obtained therefrom for purchasing further extent of 65.60 cents lying adjacent to the property held by the petitioner trust in Kuruvattoor amsom and utilize the balance for construction of the building. 4. With the above object in mind, the petitioners filed O.P.271 of 2008 under Section 34 of the Indian Trust Act seeking permission of the court. The learned District Judge dismissed the petition. Hence aggrieved, the petitioners have come up with this writ petition. WPC.10680/2010. 3 5. Learned counsel appearing for the petitioners pointed out that there was no justification on the part of the court below in dismissing the petition. All the trustees had joined in the petition and they had made the purpose of the sale very clear. Observation of the court below that it is not necessary to sell the property to acquire other items of property and construct a building is quite unfortunate. The court below has also observed that the trust deed does not show that the trustees can sell the property. 6. The petitioner trust had approached the court under Section 34 of the Indian Trust Act. In case the court is satisfied that the sale is for the benefit of the trust, permission can be granted or opinion can be expressed. In the case on hand, the trust had property at two places. It intends to run an old age home at one place. With that in mind, the trustees decided that it is better to sell the property in Kozhikode Town and buy an additional extent of 65.60 cents of land lying adjacent to the property already WPC.10680/2010. 4 held by the petitioner in Kuruvattoor amsom. They have also pointed out that they expect to get Rs.1,50,000/- per cent. The trustees are hopeful that with the aforesaid amount they will have enough funds to put up buildings also. 7. One should remember that the very object of the trust itself is to run old age home. Therefore constructions are absolutely necessary. It is not necessary that the trust deed should provide power to the trustees to sell the property. That is where the role of the court comes in. The court has to evaluate the entire facts and circumstances of the case and has to form an opinion that the attempt is not to deplete the assets of the trust, but the same is for the benefit of the trust. The petitioners have given details of the necessity to sell the property, and it is not as if they are not going to use the sale consideration effectively and for the benefit of the trust. There is no reason to doubt the motive of the trustees. There is no reason why the proposal should not be approved. WPC.10680/2010. 5 In the result, this petition is allowed, the impugned order is set aside and the proposal to sell the property already mentioned is approved. P. BHAVADASAN, JUDGE sb.