- (1.)THIS appeal is directed against an order dated 23rd December, 2004 passed by the Hon'ble First Court whereby His Lordship while disposing of the application under section 34 of the Trusts Act, 1882 (hereinafter referred to as the said Act) was pleased to hold that the application under section 34 of the said Act is maintainable. His Lordship further held that the Trust has to remain for payment of pension not only to the members on their retirement but also to their widows, minor children not exceeding 21 years of age before or after the retirement. It is also held by His Lordship that the Trust fund cannot be held to be a resultant one as the purpose and object of the said Trust is yet to be fulfilled so far the existing staff who are on the pay roll of the company and their dependants are concerned. According to His lordship, the purchase of annuities cannot absolve the trustees to discharge their duties and the Trust has not come to an end.
(2.)THE appellants are the present trustees of the trust fund known as Dunlop executive Staff Pension Fund. The erstwhile trustees of the fund had applied to the Hon'ble Court under section 34 of the said Act stating that the trust is held by way of resultant trust in favour of the original settlor of the trust, dunlop India Limited (hereinafter referred to as the said company ).
(3.)LEARNED Counsel appearing on behalf of the respondent took a point that appeal is not maintainable from the said order and/or judgment dated 23 december, 2004 passed by the Honb'le First Court in application filed by the trustees under section 34 of the said Act, since no appeal lies from an order passed in an application under section 34 of the said Act. He relied upon the decisions reported in AIR 1935 Oudh 72 (73) (DB) (Mizra Mohammad Sadiq ali Khan vs. Kazim Ali Khan and Ors.) and 1909 Bombay 429 (432) (Trimbak mahadev vs. Narayan Hari ). According to him, order under appeal dated 23rd december, 2004 does not adjudicate the right of any party. The said order is only an opinion of the Hon'ble Court. The same does not have any binding character upon the parties, nor the same decides anything conclusively. In support of such contention he relied upon a decision reported in AIR 1945 Sind 61 (In re: Mohammed Hashim Gazdar and Ors. ).