The titan trusts tussle

Not since the 1906 case of Petit vs Jejeebhoy has the community witnessed such high profile litigants locked in legal combat.

When the Sir Jamsetjee Jejeebhoy Parsee Benevolent Institution (JJPBI) trustees filed a case for eviction in 2002 against the community’s most revered trust, the Bombay Parsi Punchayet Funds and Properties (BPP), the community was perplexed.

The initial glee and gloating that the most powerful community institution which has initiated eviction proceedings against hundreds of its tenants was now getting paid in its own coin, slowly waned.

The realization that the 7,000 square feet premises in the heart of south Bombay’s commercial Fort district would be lost by the community’s premier trust raised several crucial social and legal issues.

The JJPBI which runs pre-primary, primary and secondary schools in the three-storey heritage structure stated they required the premises to cater to the burgeoning cosmopolitan student po­pu­lation and to enlarge the facilities offered. The trust is said to have under 40 Parsi students in the school. The Pun­chayet, tho­ugh it also caters to cosmopolitan needs, largely ser­ves the community.

According to a BPP write up, "Sometime in the year 2001, for the first time there has been correspondence between the JJ­PBI and the BPP on the above issue. A sub-committee of two trustees each was also formed to find an amicable solution. In one of the meetings of the said Sub-Committee i.e. on 4/12/2001 the following proposals were made by the JJPBI:

a) The present Jaman Room Block consisting of a ground plus a first floor admeasuring a total of 2,800 sq ft be expanded. There are two options available here: Firstly an additional two floors could be constructed atop the present structure so as to provide 5,000 sq ft of total space in this block. Secondly, the present structure could be demolished and a new structure be constructed in its place. The expanded/reconstructed block would then be provided exclusively to the BPP for housing their office.

b) The exact area of new construction would depend upon the BPP’s requirements and would have to take into account the municipal, heritage and other rules in force.

The JJPBI building on Dadabhoy Naoroji Road

c) The BPP shall extend an interest free loan to fund the expansion/reconstruction and the amount of this loan shall remain with the Institution as long as the BPP continues to occupy space on the premises.

d) The premium to be paid to the government for the additional space constructed at the Jaman Room Block be provided by the BPP as a donation to the Institution.

e) A nominal monthly rent will be paid by the BPP for use of the space.

f) The plans for expansion/reconstruction must adhere to the heritage nature of the main building and must be passed by the Institution prior to construction.

g) In the proposal being accepted by the BPP, they will shift their entire present accommodation to the new area and give vacant possession of their present premises to the JJPBI.

"Parsi Punchayet on considering the above proposal conveyed their inability to accept the above Proposal No (c) and (d) due to financial constraints and requested for better suggestion to the same. Without offering BPP some alternative suggestion, Sir JJPBI hastily filed the above suit (for) eviction.”

In order to better acquaint the community at large with the issues concerned, The Bombay Samachar columnist Berjis Desai and the Parsiana editor wrote to the chairman of the BPP Minoo Shroff requesting for copies of the legal documents filed in the Small Causes Court, Bombay. In response Shroff sent us a copy of the plaint and the written statement.

As the matter is sub judice, Par­siana is reproducing pertinent extracts from the plaint and written statement for our readers without editing or stylistic changes. The omitted portions are more legalistic and technical in nature and may not be of substantial interest to the lay reader.

IN THE COURT OF SMALL CAUSES AT MUMBAI

R.A.E. Suit No 1218/2002 of 2002

1. Sir Jamsetjee Jeejeebhoy, 7th Baronet, Age: 89 yrs. Occ: Trustee

2. Mr. Jamshed Nusserwanii Guzder, Age: 85 yrs. Occ: Industrialist

3. Mr. Rustomjee J. R. B. Jeejeebhoy, Age: 75 yrs. Occ: Landlord

4. Prof. Khurshed Cavasji Sheriar, Age: 75 yrs. Occ: Retired

5. Mr. Kersi Minocher Gherda, Age: 74 yrs. Occ: Director

6. Mr. Homi Dinshaw Mehta, Age: 61 yrs. Occ: Management Consultant

7. Mr. Rustom Jamsetjee Jeejeebhoy, Age: 44 yrs. Occ: Business

8. Mr. Sohrab Edulji Morris, Age: 76 yrs. Occ: Solicitor

9. Mr. Minoo Hormusji Mody, Age: 70 yrs. Occ: Trustee

10. Dr. Burjor Sorabji Cooper, Age: 71 yrs. Occ: Engineer

11. Mr. Fali Pirojshaw Sarkari, Age: 70 yrs. Occ: Chartered Accountant

12. Mr. Rustom N. B. Jeejeebhoy, Age: 51 yrs. Occ: Director

All the Trustees of the SIR JAMSETJEE JEJEEBHOY PARSEE BENEVOLENT INSTITUTION, a Public Charitable Trust registered with the Charity Commissioner in Maharashtra under Registration No. C-221, and having its office at 209, Dr. Dadabhoy Naoroji Road, Fort, Mumbai - 400 001.

PLAINTIFFS

V E R S U S

1. Sir Jamshed N. Guzder, Age: 85 yrs. Occ: Industrialist

2. Mr. Minoo Rustomji Shroff, Age: 70 years, Occ: Director

3. Mrs Silloo K. Kavarana, Age: 81 years, Occ: Social Worker

4. Mr. Dinshaw Rusi Mehta, Age: 58 years, Occ: Business

5. Mr. Dadi Bejanji Engineer, Age: 68 years, Occ: Solicitor

6. Mr. Rustom Sheriar Tirandaz, Age: 58 years, Occ: Business

7. Mr. Dinshaw Kaiki Tamboly, Age: 54 years, Occ: Trustee

All the Trustees of PARSEE PUNCHAYET FUNDS and PROPERTIES, a Public Charitable Trust, registered with the Charity Commissioner in Maharashtra, under Registration No. C-416 and having its office at 209, Dr. Dadabhoy Naoroji Road, Fort, Mumbai - 400 001. ... DEFENDANTS

Extracts from the Plaint

Somewhere in or about 1872, the Defendants were let out a part of the area on the Ground Floor and on the 3rd Floor in the said property by their predecessors-in-title, namely the then Trustees of the said Trust. Plaintiffs state that the said parts let out to the Defendants comprised the following:

Approximate Sq. Ft. Sq. Mtrs.

(i ) Record Room

on Gr. Floor34032

(ii) Part of Main Hall

on 3rd Floor3,362312

(iii) A partitioned

portion on the

3rd Floor landing60756

(iv) Lunch Room

on 3rd Floor27526

(v) Staff Room on

3rd Floor21320

The present monthly rent in respect of the premises let out to the Defendants is Rs. 267.

Plaintiffs further state that apart from the above area, the Defendants have claimed to be tenants also of a Board Room admeasuring approximately 677 sq ft (equivalent to 63 sq mtrs) which was not let out but has been in common use by the Plaintiffs’ Trust and the Defendants. Plaintiffs also state that the Defendants have gradually usurped the entire staircase landing on the 3rd Floor and the said area is being used as part of their office…

Plaintiffs state that their Trust runs one Pre-primary and Primary School, one Secondary School for girls and one Secondary School for boys within the said property. Plaintiffs further state that the numerical strength of the students and staff in these Schools run on the said property has been increasing from time to time. In the 1950s the total number of students taking education from these schools run by the Trust was around 700 and the same has now grown to 1,700. However the accommodation available to the Trust has remained constant all these years. Plaintiffs further state that they have for some time been feeling an acute shortage and insufficiency of accommodation and as a result certain basic educational activities had to be sacrificed by their Trust. Plaintiffs further state that by reason of insufficient accommodation they have been constrained to utilize the staircase landings on the Ground, First and Second floor of the said property as classrooms. The Plaintiffs have been further compelled to even utilize some of the passages and galleries as classrooms. Plaintiffs state that on account of lack of accommodation, the administrative offices and staff rooms for three schools are accommodated in a small area which too is a makeshift arrangement. Plaintiffs state that for want of accommodation, they are constrained to have classrooms having an average strength of over 55 students, which is not a conducive atmosphere for learning. Plaintiffs state that they are unable to offer essential educational facilities to their students. Plaintiffs state that though they would like to maintain laboratories for each of their Secondary Schools run by them, they are now forced to merge these laboratories into a common facility for both the Secondary schools run by the Plaintiffs’ Trust. Plaintiffs state that despite all these optimum space utilization exercises they are still not able to provide for an Assembly Hall, Physical Training Room, adequate Library-cum-Reading Room for the students being educated in their Schools. Plaintiffs state that further promotion of educational activities in diverse and new fields cannot be contemplated by them though they would like to provide these...

Plaintiffs submit that if they do not get the possession of suit premises, they would suffer grave hardship and will have to either close down some classrooms or courses or curtail the educational activities and reduce the number of students, which would certainly not be in furtherance of the objects of the Trust. The Defendants, on the other hand will not suffer any hardship whatsoever for diverse reasons. Firstly, the Defendants have not availed the alternate accommodation so generously offered by the Plaintiffs. Secondly, the Defendants are the owners of several properties throughout Mumbai including in South Bombay. The Defendants have in the past on several occasions chosen to dispose of or parted with possession of several of their properties/parts thereof by sale, lease or licence for huge monetary gains which they could easily have retained for their own use. The Defendants, even now have several premises in their possession in which they can conveniently relocate themselves in one of the several premises "available” to them. Thirdly, the Defendants being financially sound, specially after the enactment of the Maharashtra Rent Control Act, 1999 can easily acquire premises for their own office. The Plaintiffs, on the other hand have only the suit property from which they can run their said Schools. Plaintiffs submit that in any event, they would suffer much greater hardship if they do not get possession than the hardship, if any, that may be caused to the Defendants by passing of decree in respect of the suit premises...

Written statement extracts

It is regrettable that the Plaintiffs’ Trust has thought it fit to drag one of the oldest and the most reputed Trust to (a) Court of law knowing fully well the nature of help rendered by the Defendants to the Plaintiffs in their hour of need. The Defendants have been instrumental in helping the Plaintiffs with monetary benefits at the time of the construction of the Suit Building as well as for repairs and maintenance of the building including the lift therein. As such apart from the Plaintiffs not being entitled to file the suit... they are also not entitled to maintain the Suit on moral principles…

It is true that Defendants have been let out the Suit Premises and which they have been occupying i.e major portion on the premises of the 3rd floor ever since the inception of the Suit Building in the year 1872 as also the Record Room situated on the ground floor of the Suit Building. The Defendants further submit that they have also let out premises for housing the elevator and its machine room on the ground floor of the suit building. The Defendants say that the 3rd floor of the Suit Building was specially constructed for the office use of the Defendants’ Trust by the then Trustee of the Plaintiffs’ Trust. The then trustees of the Plaintiffs’ Trust had so constructed the 3rd floor out of gratitude and feelings the then Plaintiffs’ Trustees had for the Defendants’ Trust. It was also in appreciation for the benevolency shown by the Defendants’ Trust in view of the handsome donation given of Rs 2,34,000 in the year 1849 from its corpus leaving only a balance of Rs 1,89,129. As such the Defendants have greatly contributed and shared in the construction of the Suit Building and hence it cannot be said that a pure relation of landlord and tenant as sought to be made out, exists between the parties in view of what is stated above. The Defendants say that the Plaintiffs’ Trust is an offshoot from the Defendants’ Trust and that in the year 1849 at about the time of construction of the Suit Building the Plaintiffs’ Trust was formed out of the then Trustees of the Defendants’ Trust. The Defendants crave leave to refer to and rely upon the relevant extract from the Gujarati book Sir Jamsetjee Jeejeebhoy First Parsee Baronet by Ratanji Behramji Madan, published in 1899. It is true that the rent in respect of the Suit Premises is Rs 267 per month.

With further reference to para 2 of the Plaint, the Defendants say that the area presently under the use and occupation of the Defendants in the Suit Building works out to approximately 7,000 sq. ft. The Defendants dispute the area as shown in the para under reply and submit that the said area also differs with the area alleged to have been stated in the Notice annexed to the Plaint. The Defendants have also been paying a sum of Rs 10,000 every year, to the Plaintiffs’ Trust towards the maintenance and which have been accepted by the Plaintiffs as donation in addition to the rent paid every month. In the year 1999 Defendants contributed to the Plaintiffs’ Trust a sum of Rs 15,00,000 towards their share of the repairs and renovation of the Suit Building. All these payments have been made by the Defendants to the Plaintiffs out of goodwill and the same has been accepted by the Plaintiffs without any grievance or complaint but with gratitude. The Defendants have always had the interest of the Suit Building and the school at heart. Relations between the then Trustees of the Plaintiffs and that of the Defendants were so cordial and intimate that it was always understood between the Plaintiffs and the Defendants that the Defendants will be a permanent tenant of the suit premises for all times to come and they will never be asked to quit the suit premises by the Plaintiffs at any time under any circumstances. The Defendants therefore submit that the suit filed by the Plaintiffs against the Defendants is nothing but a breach of understanding between the parties. The Defendants have also been let out premises — for housing the elevator and its machine room on the ground floor of the said building.

With reference to para 3 of the Plaint the Defendants say that the Board Room was always part of the premises let out to the Defendants at the 3rd floor of the suit building. The Defendants vehemently deny that there is any such common use in respect of the premises situated on the 3rd floor being the Board Room. The question of Board Room being used in ... common does not at all arise. The Board Room of the Defendants is being used for meetings, discussions, conferences and for housing the Library. The Defendants also deny that they have in any manner usurped the entire alleged staircase landing on the 3rd floor. The Defendants submit that the user of the premises on the 3rd floor has always been exclusively by the Defendants to the knowledge and consent of the Plaintiffs for the last more than 42 years. The Plaintiffs have never complained of the said user and/or the manner of said user of the premises on the 3rd floor. As such the objection now sought to be raised is improper and misconceived.

With reference to para 4 of the Plaint, the Defendants vehemently deny having usurped any area in the suit building. It appears that these allegations have been made by the Plaintiffs under ill advise and the same has been made in order to cause prejudice. It is not proper on the part of the Plaintiffs to have cast such allegations and aspirations against an oldest and a reputed Trust. The Defendants do not see any alleged urgency of the alleged requirement of the Plaintiffs…

The Defendants do not admit that the numerical strength and students in school have been increasing from time to time. No doubt, there may have been some increase in the Staff as also the Students since the year 1950; however the said increase is not so phenomenal as now sought to be made out. The Defendants are not aware of the present strength of students in the school. The Plaintiffs are deliberately vague in setting out their alleged need. The Defendants however submit that there is neither any congestion and/or paucity of place for the students as sought to be made out. The Defendants do not at all admit that the Plaintiffs have been constrained to use the staircase landing situated on the ground floor, first floor, second floor and/or third floor of the property as class rooms. If these areas are put to use by the Plaintiffs the same is due to the fact that excess and additional areas are available with the Defendants. The Defendants also do not admit of the alleged compulsion to utilize some of the balconies and galleries as classrooms by the Plaintiffs. The Defendants do not at all admit that the administrative offices and the staff rooms where the alleged three schools are accommodated have a small area, which is allegedly a makeshift arrangement. The Defendants are not at all aware of the present strength of the students in each of the class. The Defendants state that the Plaintiffs have in their possession and occupation a separate building on the rear side of the suit building which admeasures approximately 3,000 sq ft area and which has been lying vacant on the Suit Property. Only a small portion of this structure is being utilized as a class room by the Plaintiffs. The Defendants further submit that the Plaintiffs can or could utilize the said structure if they were seriously desiring to pursue their alleged objects. The Defendants deny that the Plaintiffs are unable to offer essential educational facilities to their students. The alleged contention apart from being vague is also incorrect. The Defendants are not aware that the Plaintiffs are allegedly forced to merge the Laboratory into the common facility for secondary school. The Defendants do not at all admit that the Plaintiffs are unable to allegedly provide for an assembly hall, physical training room, adequate library cum reading room for the students. The Defendants are not aware of the alleged objects of the Trust and put the Plaintiffs to the strict proof thereof. The Defendants do not admit that the Plaintiffs are unable to fulfill the alleged objects of promoting the educational activities. The Defendants submit that there is no insufficiency of space on the Plaintiffs’ property. The Defendants say that the Plaintiffs under the guise of allegedly carrying out the laudable objects of the said Trust want to deprive the Defendants from carrying out and/or achieving their objects as provided for in their Trust Deed. The Defendants submit that their objects under the Trust Deed is far more and the same are spread over in almost all fields and faculties. As such the Defendants not only cater to and have responsibility towards the Zoroastrian community at large, but also cater to other individuals as well as other institutions…

With reference to para 6 of the Plaint it is true that there had been previous correspondence exchanged, between the parties. In this regard efforts were made to have a joint meeting for which a special committee had also been appointed to work out a via media. However before things could take shape the Plaintiffs under ill advise rushed to the Court of law…

No doubt, the Defendants have vested under them several properties. Almost all of these properties are meant for residence which are to be allotted as per their objects and aims. All these properties require constant Management, Repairs and Maintenance. The Defendants have not only a responsibility towards the community but also towards several other properties, institutions and government bodies. The Defendants have no such premises with them where they could go and occupy for the purposes of their office nor have with them funds/surplus funds for the purposes of acquiring alternative accommodation for their office purpose. The Defendants say that in view of their work as also the nature of objects and the aims it is necessary that the office of the Defendants is situated in and around south Bombay. Today, the Defendants have substantive staff force of employees which constitute the staff working at the suit premises and the staff working at the properties vested with the Defendants and other employees who are in the form of Malis, Sweepers, Gardeners etc. The passing of the Decree by the Hon’ble Court is bound to cast hardship not only to the Defendants and Staff of the Defendants, but will also cast prejudice to the community (beneficiaries, at large). The Defendants vehemently deny that they are in possession of any such vacant property in south Bombay or anywhere in the city where they can relocate themselves. The Defendants deny that they have in the past on several occasions chosen to dispose of or parted with possession of several of their vacant properties/part thereof by sale, lease or licence for huge monetary gains which they could easily have retained for their own use. The Defendants also vehemently deny that they are financially sound. The Defendants say that the monies which are lying with them are by way of corpus which has been created for the purposes of daily maintenance and for meeting with the objects as set out in the Trust Deed. The Defendants are not at all empowered to utilize these funds which are as and by way of corpus. By doing so the defendants will be committing the breach of the terms of the Trust Deed and the Trustees will be liable to be prosecuted which is within the knowledge of the Plaintiffs’ Trust. The Defendants deny that the Plaintiffs have only the suit property from which they can run their said schools.