1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) SECOND APPEAL NO.116 OF 1998
1) Shyamabai wd/o Surajkaran Joshi,
aged about 50 years,
2) Murarilal s/o Surajkaran Joshi,
aged about 32 years,
3) Nirmal s/o Surajkaran Joshi,
aged about 28 years,
4) Bhagwati d/o Surajkaran Joshi,
aged about 18 years,
5) Madhubala d/o Surajkaran Joshi,
aged about 12 years,
minor by guardian appellant
no.1 - mother,
All r/o Shivaji Wes Khamgaon,
District Buldhana.
6) Sau. Tejkawar Gopal Thanwi,
r/o Hyderabad. ... Appellants
- Versus -
Madan Mohan Mandir Sanstha,
a Public Trust by Trustee
Bhaiji Kanji Ganatra, aged about
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65 years, r/o Khamgaon,
Tahsil Khamgaon, District Buldana. ... Respondent
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Shri J.T. Gilda, Advocate for the appellants,
Shri B.N. Mohta, Advocate for the respondent.
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(II) WRIT PETITION NO. 3749 OF 2008
Shri Raimalbua Sanstha - Trust,
a registered Public Trust bearing
PTR No. A-1021/Akola, by its
Managing Trustee Shri Ramdas
s/o Onkarrao Mehere, aged 74
years, r/o Akot, Yatra Square
Area, Taluka Akot, District Akola. ... Petitioner
- Versus -
1) Sumanbai wd/o Ramkrushna
Wankhade, aged about 56 years,
occupation : household,
2) Ashok s/o Ramkrushna Wankhede,
(died), through legal representatives -
i) Smt. Taibai Ashok Wankhede,
aged about 28 years,
ii) Nilesh s/o Ashok Wankhede,
aged about 17 years,
since minor through his mother
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Smt. Taibai Ashok Wankhede,
iii) Sachin s/o Ashok Wankhede,
aged about 11 years,
since minor, through his mother
Smt. Taibai Ashok Wankhede,
All r/o Lendipura, Akot,
Taluq Akot, District Akola. ... Respondents
-----------
Shri A.M. Gordey, Advocate for the petitioner.
Shri S.D. Chopde, Advocate for the respondents.
------------
Date of reserving the judgment : 4/9/2009
Date of pronouncing the judgment : 10/12/2009
CORAM : SWATANTER KUMAR, C.J.
D.D.SINHA AND P.B. VARALE, JJ.
DATED : 10/12/2009
JUDGMENT (PER D.D.SINHA, J.) :
Heard Shri Gilda, learned Counsel for the
appellants, and Shri Mohta, learned Counsel for the
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respondent in Second Appeal No.116/1998, as well as
Shri Gordey, learned Counsel for the petitioner and Shri
Chopde, learned Counsel for the respondents in Writ
Petition No. 3749/2008.
2) Justice A.B. Chaudhari in view of conflicting
decisions of the learned Single Judges of this Court in the
writ petitions
thought it appropriate to refer the
controversy in issue to the larger Bench and, therefore,
vide order dated 6.8.2009 passed in Second Appeal
No.116/1998 referred the following questions for
determination to the Full Bench :
(i) Whether Sections 47 and 48 of the
Indian Trusts Act, 1882 are applicable to a
Public Trust and consequently, whether all the
Trustees of such Public Trust are required to be
joined as party to the suit for eviction of a
tenant ?
(ii) Whether in the absence of registration
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of a public trust, in addition, under the Societies
Registration Act, the provisions of Societies Act
and Section 6 thereof, would apply to such a
public trust on the strength of definition of
Public Trust under Section 2(13) of the Bombay
Public Trusts Act, 1950 ?”
Similarly, Justice C.L. Pangarkar, in view of conflicting
decisions, also referred following issues to the larger
Bench for determination :
“(1) Whether Section 47 of the Indian Trusts
Act is applicable to a public trust and thus, limits
the powers of the Board of Trustees to delegatetheir powers in regard to institution of suit for
recovery of the trust property to one of their
colleagues ?
(2) Whether therefore a suit instituted by
one of the trustees for possession would be
maintainable ?
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(3) Whether by virtue of public trust being a
society, a suit for recovery of property at the
instance of the Chairman, President, Secretary ofthe public trust alone is maintainable under
Section 6 of the Societies Registration Act ?”
3) So far as reference made by Justice A.B.
Chaudhari in second appeal as well as Justice C.L.
Pangarkar in writ petition is concerned, the Trusts in
question are the “Public Trusts” registered under the
Bombay Public Trusts Act, 1950 and are not the Societies
formed either for religious or charitable purpose or for
both and are not registered under the Societies
Registration Act, 1860.
4) The issues involved in both these references
are related to questions of law and, therefore, Shri Gilda
and Shri Gordey, learned Counsel for the appellants and
petitioner, and Shri Mohta and Shri Chopde, learned
Counsel for the respondents, advanced arguments on
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the legal aspects of the matters, which are, in nutshell,
as follows :
The learned Counsel for the appellants and
respondents in W.P. contended that in view of decision
of the Apex Court in Thayarammal (dead) by L.R. v.
Kanakammal and others {(2005) 1 SCC 457} and
decision of the Division Bench of this Court in Controller
of Estate Duty v. Mangala (1982 Mh.L.J. 686) as well as
another decision of this Court in Sarda Education Trust
vs. Mukund Rambhau Pinjarkar and others (2008 (2)
Mh.L.J. 395), the provisions of the Indian Trusts Act, 1882
in general and Sections 47 and 48 in particular are not
applicable to the public trusts. It was submitted by the
learned Counsel for the respondent in appeal and
petitioner that so far as question whether public trust
being a society, a suit for recovery of property at the
instance of Chairman, President or Secretary of the
public trust alone is maintainable under Section 6 of the
Societies Registration Act, 1860 is concerned, the trusts
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in question are the public trusts registered under the
Bombay Public Trusts Act, 1950 and are not the societies
registered under the Societies Registration Act, 1860
and, therefore, question of applicability of Section 6 of
the Societies Registration Act, 1860 does not arise.
Shri Gilda and Shri Chopde, learned Counsel for
the respondents in W.P., contended that decision of the
Apex Court in the case of Thayarammal (cited supra) is
not the law laid down by the Apex Court under Article
141 of the Constitution and it is only the solitary
observation made by the Apex Court in the judgment,
which does not have the binding effect and, therefore,
law laid down by the Division Bench of this Court in the
case of Sarda Education Trust (cited supra) on the basis
of decision of the Apex Court in the case of
Thayarammal (cited supra) by ignoring the law laid down
by the Full Bench of Gujarat High Court in Atmaram
Ranchhodbhai vs. Gulamhusein Gulam Mohiyaddin and
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another (AIR 1973 Gujarat 113) is also not a good law on
the subject and the law laid down by the Full Bench of
Gujarat High Court on the subject is holding the field as
on today and needs to be followed.
5) The issues under reference to be determined by
the Full Bench are purely legal in nature and need to be
decided in view of law laid down by the Apex Court and
High Courts and, therefore, it is not necessary to state
the facts involved in the matters, which are pending
before learned Single Judges. Similarly, apart from the
above referred contentions canvassed by the respective
Counsel for the parties, other aspects, which were
placed before us by them will be dealt with at the
appropriate stage of the judgment.
The learned Counsel for the respondent in S.A.
and petitioner are claiming that so far as applicability of
provisions of Sections 47 and 48 of the Indian Trusts Act,
1882 to the public trusts is concerned, it is no more
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res integra and is already concluded by the decisions of
the Apex Court and Division Bench of this Court whereas
the learned Counsel for the appellants in S.A. and
respondents in W.P. are claiming otherwise and,
therefore, it would be appropriate to scrutinise the
judgment of Division Bench of this Court as well as Apex
Court in Sarda Education Trust (cited supra) and
Thayarammal (cited supra) respectively.
6) The Division Bench of this Court in the case of
Sarda Education Trust while hearing the letters patent
appeal against the order of the learned Single Judge of
this Court was faced with the factual and legal aspect,
which was similar to the issues under reference. The
facts, which had given rise for filing of letters patent
appeal were as follows :
The appellant Sarda Education Sanstha owned
field Survey No.19 of village Wadali, Tahsil Daryapur,
District Amravati. 12.20 acres of land out of the said
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survey number was in the possession of tenant Sitaram,
who surrendered 8.20 acres in favour of appellant Trust
by executing Deed of Relinquishment on 17.7.1970 and
retained 4 acres of land for himself as tenant. According
to the appellant Trust, in the year 1997-98, he inducted
respondent no.1 Mukund (original respondent no.1) as
sub-tenant. Sitaram expired and, therefore, his legal
representative was brought on record. The appellant
Trust, which was granted exemption under Section 129
of the Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act, 1958, filed an application under Section
19(1)(d) of the said Act for recovery of possession of
4 acres of land, which was with Mukund on the ground
that original tenant Sitaram sublet the said land to him,
which was not permissible and also failed to cultivate
the same personally. The said application was filed on
1.10.1983. The Tahsildar held in favour of appellant vide
order dated 31.1.1986. The tenant filed an appeal,
which was rejected by the Sub-Divisional Officer vide
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order dated 20.2.1986. The revision was also dismissed
by the Maharashtra Revenue Tribunal on 30.9.1988.
The review, which was sought by tenant Mukund also
came to be dismissed vide order dated 20.7.1989.
Aggrieved by the orders passed by the Revenue
Authorities, Mukund filed writ petition before this Court.
The learned Single Judge of this Court relying on the
decision in the case of Nanalal Girdharlal and another
vs. Gulamnabi Jamalgbhai Motorowala and others (AIR
1973 Gujarat 131) held that provisions of Sections 47
and 48 of Indian Trusts Act, 1882 and the principle
embodied in those Sections must apply to the public,
religious and charitable Trusts under the Bombay Public
Trusts Act and, therefore, finally concluded that it was
necessary to go into the question whether the
delegation in favour of the Secretary of the Trust to
initiate proceedings was legal, proper and covered by
the provisions of Section 47 of the Indian Trusts Act or
not. The learned Single Judge set aside the orders
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impugned in the writ petition and remanded the matter
back to the Tahsildar, Anjangaon to decide the
application afresh in accordance with law.
The Division Bench of this Court after taking
into consideration the pros and cons as well as preamble
and Section 1 of the Indian Trusts Act, 1882 as well as
decision of the Apex Court in the case of Thayarammal
(cited supra) held that provisions of Sections 47 and 48
of the Indian Trusts Act, 1882 are not attracted and
resolution passed even after the action of eviction was
initiated by all the Trustees authorizing one of them to
recover the possession of land from the tenant has been
held to be a sustainable action in law.
7) At the outset we would like to express that
when the judgment of the Division Bench of this Court in
the case of Sarda Education Trust (cited supra) was
holding field and was in force, there was no occasion for
making a reference to the larger Bench for determining
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the issue about applicability of the provisions of
Sections 47 and 48 of the Indian Trusts Act, 1882 in
respect of action initiated by one of the Trustees of the
Public Trust for eviction since decision of the Division
Bench is binding on the learned Single Judge. It is
pertinent to note that the judgment of the Division
Bench of this Court was based on the decision of the
Apex Court in case of Thayarammal (cited supra). It is
not in dispute that there was no other Division Bench
decision in conflict with the Division Bench decision
rendered in the case of Sarda Education Trust and in
absence thereof, there was no occasion for the learned
Single Judges for making reference to the larger Bench
in respect of issues on which there was no difference of
opinion expressed by the other Division Benches of this
Court.
8) There is another aspect, which we cannot lose
sight of. The decision of the Division Bench in the case
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of Sarda Education Trust is based on the Supreme
Court’s decision in the case of Thayarammal (cited
supra). The Supreme Court in para (15) of the said
decision has observed thus :
“15. The contents of the stone inscription
clearly indicate that the owner has dedicated the
property for use as “Dharamchatra” meaning aresting place for the travellers and pilgrims visiting
the Thyagaraja Temple. Such a dedication in the
strict sense is neither a “gift” as understood in theTransfer of Property Act, which requires an
acceptance by the donee of the property donated
nor is it a “trust”. The Indian Trusts Act as clear byits preamble and contents is applicable only to
private trusts and not to public trusts. A dedication
by a Hindu for religious or charitable purposes is
neither a “gift” nor a “trust” in the strict legalsense. (See B.K. Mukherjea on Hindu Law of
Religious and Charitable Trusts, 5th Edn. By A.C.
Sen, pp. 102-103). (Emphasis supplied)
The above referred observations of the Apex Court
clearly demonstrate that the Apex Court has considered
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the preamble and contents of the Indian Public Trusts
Act and since the language of the preamble and
provisions of Indian Public Trust Act being straight-
forward and unambiguous and is capable of conveying
the intention of Legislature, concluded that the
provisions of Indian Trusts Act are applicable only to
private Trusts and not the public Trusts. The preamble
of the Indian Trusts Act clearly shows that the Indian
Trusts Act was enacted by the Parliament to define and
amend the law relating to private Trusts and Trustees
and the provisions of this Act have no application so far
as public trust is concerned.
9) It is well settled that when language of the
substantive provisions of the enactment is unambiguous
and capable of conveying real and factual intention of
the Legislature and the preamble as well as statement of
objects and reasons of the statute make it implicitly
clear the intention of the Legislature on the face of it, in
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that event, it is necessary to interpret the statute by
giving the natural meaning reflected therein. In the
instant case, provision of Section 1 of the Indian Trusts
Act stipulates that though the provisions of the Act are
extended to the whole of India except State of Jammu
and Kashmir and Andaman and Nicobar islands,
however, it is made clear that no provision of the Act will
affect the rules of Muhammadan law as to Wakf or the
mutual relations of the members of an undivided family
as determined by any customary or personal law or to
the public or private religious and charitable
endowments. Section 1, therefore, in no uncertain terms
excludes applicability of the provisions of Indian Trusts
Act to the public trusts. It is no doubt true that Bombay
Public Trusts Act, 1950 came into force at later in point
of time. However, that does not mean that the
provisions of the earlier Act can be picked up as and
when it is convenient to do so. It is well settled that
provisions of the earlier Act can be read in subsequent
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Act only when the Legislature comes up with proper
legislation, i.e. legislation by adoption, legislation by
reference or legislation by incorporation or by amending
the Acts. It is not the job of the Court to read the
provisions of one Act into another by adopting one of
these methods since it is for the Parliament or the State
Legislature to undertake this exercise and come up with
appropriate legislation. The Courts interpret laws and do
not legislate any. It is from this perspective also,
applying the provisions of Sections 47 and 48 of the
Indian Trusts Act to the public Trusts without there being
any legislation to that effect evolved by the Parliament
or State Legislature, in our view, would be impermissible
and more so because the Supreme Court also endorsed
its seal of approval by holding that provisions of the
Indian Trusts Act are applicable only to the private
Trusts and not to the public Trusts in the case of
Thayarammal (cited supra).
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10) It is no doubt true that Full Bench of Gujarat
High Court in the case of Atmaram Ranchhodbhai (cited
supra) after placing reliance on the decision of the
Supreme Court in Sheikh Abdul Kayum and others vs.
Mulla Alibhai and others (AIR 1963 SC 309), in para 8,
has observed thus :
“8. It is, therefore, clear that one co-trustee
cannot give notice
ig to quit determining the
tenancy. The decision to determine the tenancy
by giving notice to quit must be taken by allco-trustees unless, of course, the instrument of
trust otherwise provides, or the beneficiariesbeing competent to contract consent, or in any
particular case it is established that on thepeculiar facts obtaining in that case, the
delegation of the power to determine the tenancywas necessary. But when we say that the
tenancy must be determined by all co-trustees,
we must make it clear that what we mean is thatthe decision to terminate the tenancy must be
taken by all the co-trustees. The formal act of
giving notice to quit pursuant to the decision
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20one co-trustee on behalf of the rest. The notice
to quit given in such a case would be a notice
given with the sanction and approval of all theco-trustees and would be clearly a notice given
by all co-trustees.”
However, it is important and relevant to consider what
Apex Court has observed in para (17) of its judgment in
the case of Sheikh Abdul Kayum and others (cited
supra), which reads thus :
“(17) It is true that S. 1 of the Indian Trusts
Act makes provisions of the Act inapplicable topublic or private religious or charitable
endowments and so, these sections may not interms apply to the trust now in question. These
sections, however, embody nothing more or lessthan the principles which have been applied to all
trusts in all countries. The principle of the rule
against delegation with which we are concernedin the present case is clear : a fiduciary
relationship having been created, it is against the
interests of society in general that such
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21unilaterally. That is why the law does not permit
delegation by a trustee of his functions, except in
cases of necessity or with the consent of thebeneficiary or the authority of the trust deed
itself; apart from delegation “in the regular
course of business”, that is, all such functionswhich a prudent man of business would ordinarily
delegate in connection with his own affairs.”
(emphasis supplied)
The above referred observations of the Apex Court in no
uncertain terms convey that provisions of the Indian
Trusts Act, 1882 do not apply to the public trusts. The
Full Bench of Gujarat High Court in the case of Atmaram
Ranchhodbhai (cited supra) relied on the decision of the
Apex Court in the case of Sheikh Abdul Kayum and
others (cited supra) wherein the Apex Court has
observed that Section 1 of the Indian Trusts Act makes
provisions of the Act inapplicable to the public or private
religious or charitable endowments and so these
Sections may not in terms apply to the trust in question,
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which is consistent with the law laid down by the Apex
Court in the case of Thayarammal (cited supra) on the
subject. It is also not in dispute that neither the
Parliament nor State Legislature has evolved any
legislation either by incorporation, reference or adoption
whereby any specific provision of either Act can be read
in other Act. So far as Section 2(20) of the Bombay
Public Trusts Act, 1950 is concerned, it reads thus :
“(20) Words and expressions used, but not
defined in this Act and defined in Indian Trusts
Act, 1882 shall have the meanings assigned to
them in that Act.”
In order to attract the provisions of this Section, it is
necessary that :
(a) there must be a word or expression
used in the Bombay Public Trusts Act, 1950, but
not defined by it, and
(b) such word or expression has been
defined by the Indian Trusts Act, 1882.
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When the Act defines a word and that word is used in
the rule framed under the powers conferred by that Act,
then that word must carry the same meaning, which is
assigned to it in the definition unless the subject or
context necessarily implies otherwise. The provisions of
Section 2(20) do not imply that the provisions of Indian
Trusts Act, 1882 relating to creation of trust,
appointment of
trustees, their powers, duties,
responsibilities, etc. will apply to the Bombay Public
Trusts Act, 1950. The provision of Section 2(20) of the
Bombay Public Trusts Act, 1950, which stipulates that
words and expressions used, but not defined in this Act
and defined in Indian Trusts Act, 1882 shall have the
meanings assigned to them in that Act, is a legislative
device generally adopted for the sake of brevity.
However, so far as applicability of the provisions of
Sections 47 and 48 of the Indian Trusts Act, 1882 to the
public trusts is concerned, there is no such legislation
evolved by the Legislature in particular or in general and
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incorporated in the Bombay Public Trusts Act, 1950 so
that the provisions of the Indian Trusts Act, 1882 can be
read in Bombay Public Trusts Act, 1950. On the other
hand, the Preamble and provision of Section 1 of Indian
Trusts Act, 1882 are otherwise. Even otherwise, the
Apex Court in the case of Thayarammal (cited supra) has
specifically held that the provisions of Indian Trusts Act,
1882 are not applicable to the public trusts and are
applicable to the private trusts only. This being the law
declared by the Apex Court under Article 141 of the
Constitution, is law of land.
11) The legislation by incorporation is a common
legislative device where Legislature for the sake of
convenience of drafting incorporates provisions from an
existing statute by reference to that statute instead of
verbatim reproducing the provisions which it desires to
adopt in another statute. Once incorporation is made,
the provisions incorporated become an integral part of
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the statute in which it is transposed and thereafter there
is no need to refer the statute from which incorporation
is made and any subsequent amendment made in it or
even if it is totally repealed has no effect on the
incorporating statute. On the contrary, in case of mere
reference or citation, a modification/repeal or
amendment of statute that is referred, will also have an
effect on the statute in which it is referred. Unless
different intention clearly appears, the reference would
be construed as reference to the provisions as may be in
force from time to time in the former statute. Since we
are not required to deal with the issue about which
legislation the appropriate Government would have
evolved, we do not propose to express any opinion in
this regard. We would only like to express that as per
the principles of statutory interpretation, if the
language of the substantive provisions of the Act is
completely unambiguous and is capable of conveying
intention of the Legislature, the Court will have to give
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the said natural meaning to such provisions while
interpreting such statute. Even otherwise, if language of
the statute is ambiguous, while construing such statute,
regard must be had to the preamble and other
provisions of the statute. Hence, when we look at the
issue in question from any angle, the irresistible
conclusion is that provisions of Sections 47 and 48 of the
Indian Trusts Act cannot be made applicable to the
public trusts. The observations made by the Apex Court
in para (31) of its judgment in Nagpur Improvement
Trust vs. Vasantrao and others (2002 (4) ALL MR 905
(SC) read thus:
“31. We shall now proceed to consider
whether the provisions of the Land Acquisition Act,
1894 as modified by the State Acts stand
incorporated in the State Acts or whether there is
a mere reference or citation of the Land
Acquisition Act in the State Acts. The law on the
subject is well settled. When an earlier Act or
certain of its provisions are incorporated by
reference into a later Act, the provisions so
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incorporated become part and parcel of the later
Act as if they had been bodily transposed into it.
The incorporation of an earlier Act into a later Act
is a legislative device adopted for the sake of
convenience in order to avoid verbatim
reproduction of the provisions of the earlier Act
into the later. But this must be distinguished from
a referential legislation which merely contains a
reference or the citation of the provisions of an
earlier statute.ig In a case where a statute is
incorporated, by reference, into a second statute,
the repeal of the first statute by a third does not
affect the second. The later Act along with the
incorporated provisions of the earlier Act
constitute an independent legislation which is not
modified or repealed by a modification or repeal of
the earlier Act. However, where in later Act there
is a mere reference to an earlier Act, the
modification, repeal or amendment of the statute
that is referred, will also have an effect on the
statute in which it is referred. It is equally well
settled that the question whether a former statute
is merely referred to or cited in a later statute, or
whether it is wholly or partially incorporated
therein, is a question of construction.” (emphasis
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supplied)
By the above referred observations, the Apex Court once
again made it clear that incorporation of the earlier Act
into later Act is a legislative device adopted for the sake
of convenience in order to avoid verbatim reproduction
of the provisions of the earlier Act into later Act.
However, it is the job of the Legislature and it is only
after such exercise is undertaken by the Legislature, it
will be possible to read the provisions of one Act into
another. At the cost of repetition, we want to express
that preamble of the Indian Trust Act, 1882 is crystal
clear and in no uncertain terms conveys that the said
Act came into force to define and amend the law relating
to private trusts and trustees only. The definition clause
excludes public and private religious and charitable
endowments from its application and, therefore, the
Apex Court in para (15) of its judgment in the case of
Thayarammal (cited supra) has observed that “the
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Indian Trusts Act as clear by its preamble and contents
is applicable only to private trusts and not to public
trusts.”
12) The Division Bench of this Court in case of
Sarda Education Trust (cited supra) considered preamble
and Section 1 of the Indian Trusts Act, 1882 as well as
law laid down by the Apex Court in the case of
Thayarammal and observed that provisions of Sections
47 and 48 of the Indian Trusts Act, 1882 were/are not
applicable to the public trusts. The Apex Court in para
(17) of its judgment in the case of Sheikh Abdul Kayum
and others (cited supra) has observed that Section 1 of
the Indian Trusts Act, 1882 makes provisions of the Act
inapplicable to the public or private religious or
charitable endowments and so these Sections may not in
terms apply to the trust in question. It is in the backdrop
of this legal position, there was no occasion for the
learned Single Judges to refer the question about
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applicability of provisions of Sections 47 and 48 of the
Indian Trusts Act, 1882 to the Full Bench. The relevant
observations of the Apex Court in para (15) of its
judgment in Chandramohan Pandurang Kajbaje vs. State
of Maharashtra and others (2008 (2) AIR Bom R 126)
read thus :
“It appears that both the Makasi’s case and
Kajbaje’s case (supra) were brought to thenotice of the Division Bench of the High Court,
but we notice with dismay that the High Courthas brushed aside the judgment of the Supreme
Court on the ground that the said observationsof the Supreme Court are only an obiter dicta
and they cannot be treated as ratio decidendi.
It is most unfortunate. The High Court has
failed to take note of the fact that a directionwas issued by this Court. A direction issued by
this Court cannot be treated as `obiter dicta’. It
appears that the High Court did not care to readthe judgment of this Court in between the lines
in Makasi’s case followed by Kajbaje’s case.
This is where the High Court went wrong
creating multiplicity of litigation instead of
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31
giving a quietus to the litigation.” (emphasis
supplied)
13) The Apex Court after taking into consideration
the preamble as well as provisions of Section 1 of the
Indian Trusts Act has specifically observed in its
judgment in the case of Thayarammal (cited supra) that
the provisions of the Indian Trusts Act, 1882 are
applicable only to the private trusts and not to the public
trusts. The Division Bench of this Court in view of this
legal position decided the letters patent appeal by
declaring similar law on the subject as declared by the
Apex Court. The law declared by the Apex Court for the
reasons stated hereinabove, is the law under Article 141
of the Constitution and, therefore, is the law of the land
and binding on everybody including all the Courts and,
therefore, Full Bench of Gujarat High Court is no
exception. Even otherwise, the Full Bench of Gujarat
High Court declared the law on the subject based on the
decision of the Apex Court in Sheikh Abdul Kayum and
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others (cited supra) and the Apex Court in para (17) of
the said judgment has in fact observed that Section 1 of
the Indian Trusts Act, 1882 makes provisions of the said
Act inapplicable to the public or private religious or
charitable endowments and so these Sections may not in
terms apply to the Trust in question. Similarly, we want
to observe that the decision of the Division Bench of this
Court in the case of Sarda Education Trust (cited supra)
is on the point of issue in question, which is based on the
decision of the Apex Court in the case of Thayarammal
(cited supra).
14) So far as decision of the Apex Court in the case
of State of Uttar Pradesh v. Bansi Dhar and others (AIR
1974 SC 1084) is concerned, in para (18), the Apex Court
has observed thus :
“18. The principles relevant for our case may
now be considered. Was the contribution of
Rs.30,000/- for a charitable purpose ? Lord
Sterndale, M.R. said in the Court of Appeal in::: Downloaded on – 09/06/2013 15:24:14 :::
33In re Tetley, (1923) 1 Ch 258 at p. 266 :
“I ….. am unable to find any principle which
will guide one easily, and safely, through thetangle of the cases as to what is and what is
not a charitable gift. If it is possible I hope
sincerely that at some time or other aprinciple will be laid down. The whole subject
is in an artificial atmosphere altogether.”
While in India we shall not be hide-bound by
English decisions on this point, luckily both sides
agree here and that accords with the sense of the
law that a hospital for women is a charitable
object, being for medical relief. Moreover, the
beneficiaries are a section of the public, women –
that still silent, suffering half of Indian humanity.
Therefore, this element connotes a public trust.
The next question is whether the Indian Trusts
Act, 1882, applies to the present case. The
Courts below have argued themselves into an
application of Section 83 of the Trusts Act. Sri
Dixit rightly objects to this course because that
Act relates only to private trusts, public charitable
trusts having been expressly excluded from its
ambit. But while these provisions proprio vigore
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do not apply, certainly there is a common area of
legal principles which covers all trusts, private
and public, and merely because they find a place
in the Trusts Act, they cannot become
`untouchable’ where public trusts are involved.
Care must certainly be exercised not to import by
analogy what is not germane to the general law
of trusts, but we need have no inhibitions in
administering the law by invoking the universal
rules of equity and good conscience upheld by
the English Judges, though also sanctified by the
statute relating to private trusts. The Courts
below have drawn inspiration from Section 83 of
the Trusts Act and we are not inclined to find fault
with them on that score because the provision
merely reflects a rule of good conscience and of
general application. The details of the argument
on the basis of this principle will be discussed a
little later.”
The careful reading of the above observations of the
Apex Court shows that it has given a note of caution that
care must be taken not to import any analogy, which is
not germane to the general law of the trusts and it is in
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the light of these observations, the recent decision of the
Apex Court in the case of Thayarammal (cited supra)
assumes importance, which has been rendered by the
Apex Court keeping in view the preamble and provisions
of the Indian Trusts Act and held that it is applicable
only to the private trusts and not to the public trusts.
The Apex Court has rendered decision in the case of
State of Uttar Pradesh (cited supra) in the peculiar facts
and circumstances of that case and it does not affect
the binding nature of law laid down by the Apex Court in
the case of Thayarammal since it is the direct decision
on the subject. It is in this factual and legal background,
we answer the question about applicability of provisions
of Sections 47 and 48 of the Indian Trusts Act, 1882 to
the public trusts in negative.
15) So far as the second question referred to the
Full Bench by Justice A. B. Chaudhari is concerned, we
propose to consider the provision of Section 2(13) of the
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Bombay Public Trusts Act, 1950, which is in two parts.
The first part of the provision defines a “Public Trust”
and the second part deals with the “Society” formed
either for religious or charitable purpose or for both and
registered under the Societies Registration Act, 1860.
16) The Bombay Public Trusts Act, 1950 is intended
to regulate and make better provision for administration
of public, religious and charitable trusts in the State of
Maharashtra. To carry out effectively its objects, the
Bombay Public Trusts Act, 1950 creates for the first time
unified and special provisions to deal with the charity
matters. It applies to all the public trusts. The definition
of “Public Trust” has been widened so as to include the
Societies registered under the Societies Registration Act,
1860 and Dharmada which were not included earlier,
however, it does not get the status of public trust being
included in the definition of public trust under Section
2(13) of the Bombay Public Trusts Act, 1950.
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17) The first part of Section 2(13) deals with
definition of “public trust” which means an express or
constructive trust for either a public religious or
charitable purpose or both and includes a temple, a
math, a wakf, church, synagogue, agiary or other place
of public religious worship, a dharmada or any other
religious or charitable endowment. The first part of the
provision which defines a “public trust” ends here. The
first part of the provision only deals with definition of
“Public Trust”. It is completely distinct and different
than the second part of provision of Section 2(13) which
deals with the Societies formed either for religious or
charitable purpose or both and registered under the
Societies Registration Act. The first part and the second
part of the provision are separated by the word “and”.
Since the first and the second part of the provision
though deal with the object relating to religious and
charitable purpose, however, each one of them is a
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creature of different statute and is governed by the
different provisions of laws, though included in the
definition of “public trust” mentioned in Section 2(13) of
the Bombay Public Trusts Act, 1950. Therefore, the
word “and” will have to be read with due regard to the
provisions of different laws and will have to be read in
the context of those statutes having regard to the
scheme of the provisions of Section 2(13) of the Bombay
Public Trusts Act, 1950 as well as legislative intent.
Having considered these aspects, the word “and” used
in Section 2(13) is in disjunctive sense and not in
conjunctive sense and, therefore, first part of the
provision, which deals with definition of “public trust” is
independent and is governed by the provisions of the
Bombay Public Trusts Act, 1950 and has nothing to do
with the second part of the provision, which relates to
the Societies Registration Act, 1860. In other words, so
far as “public trust” defined in the first part of the
provision is concerned, the provisions of Societies
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Registration Act, 1860 are neither attracted nor have
any application. It is, therefore, not the requirement of
Section 2(13) of the Bombay Public Trusts Act, 1950 that
the “public trust” should be registered under the
provisions of Societies Registration Act, 1860.
18) In other words, a society formed for religious or
charitable purpose or for both and registered under the
Societies Registration Act, 1860 mentioned in the latter
part of the definition clause of Section 2(13) of the
Bombay Public Trusts Act, 1950 by itself will not get the
status of “public trust” within the meaning of Section
2(13) of the Bombay Public Trusts Act, 1950 unless it
receives a certificate under Rule 8 of the Bombay Public
Trusts Rules, 1951. However, since the word “and” is
used in the disjunctive sense, “public trust” is not
required to be registered under the provisions of
Societies Registration Act, 1860. The learned Single
Judge of this Court in para (9) of the judgment in the
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case of Suresh Ramniwar Mantri and another vs. Mohd.
Iftequaroddin s/o Mohd. Badroddin (1999 (2) Mh.L.J. 131)
has observed thus :
“9. … It is, therefore, clear that a society
registered under the Societies Registration Act
will come within the ambit of the term “PublicTrust” only after it has received a certificate of
registration under Rule 8 of the Bombay Public
Trusts Rules, 1951, on completion of the enquiryunder section 19 and an order is passed under
section 20 of the Trusts Act….”
We, therefore, answer the second question referred to
us by Justice A.B. Chaudhari in negative.
19) Justice C.L. Pangarkar has referred three questions
to the Full Bench for determination, out of which we have
already answered question no.1 by holding that the
provisions of Section 47 of the Indian Trusts Act, 1882
are not applicable to the public trust.
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20) So far as the second question referred to us by
Justice C.L. Pangarkar is concerned, it will be appropriate
to reproduce the observations of the Apex Court in
para 29 of the judgment in the case of J.P. Srivastava &
Sons (P) Ltd. and others vs. Gwalior Sugar Co. Ltd. and
others {(2005) 1 SCC 172), which are as follows :
“29.
Therefore, although as a rule, trustees
must execute the duties of their office jointly,this general principle is subject to the following
exceptions when one trustee may act for all (1)
where the trust deed allows the trusts to beexecuted by one or more or by a majority of
trustees; (2) where there is express sanction or
approval of the act by the co-trustees; (3)
where the delegation of power is necessary; (4)where the beneficiaries competent to contract
consent to the delegation; (5) where the
delegation to a co-trustee is in the regularcourse of the business, (6) where the co-trustee
merely gives effect to a decision taken by the
trustees jointly.”
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The above observations of the Apex Court clearly
demonstrate that as a general rule, the trustees must
execute duties of their office jointly. However, this
general rule is not without exceptions and those
exceptions as mentioned by the Apex Court are : where
one of the trustees can act upon the decision taken by
the majority of the trustees, or by express sanction or
approval by the co-trustees, or where the beneficiaries
competent to contract consent to the delegation, or
where the delegation to a co-trustee is in regular course
of business or where the co-trustee merely gives effect
to the decision taken by the trustees jointly. It is in the
light of the law laid down by the Apex Court, the
question no.2 referred to us by Justice C.L. Pangarkar will
have to be decided by the learned Single Judge on the
facts and circumstances of the case.
21) So far as the third question referred to the Full
Bench by Justice C. L. Pangarkar is concerned, Shri
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Gordey, learned Counsel for the petitioner, submitted
that the petitioner is a public trust and not the society
registered under the Societies Registration Act, 1860
and, therefore, question of application of Section 6 of
the Societies Registration Act, 1860 does not arise.
A Society registered under the Societies Registration
Act, 1860 is governed by the provisions of Societies
Registration Act, 1860 for all practical purposes. Society
formed either for religious or charitable purposes or for
both and registered under the Societies Registration Act,
1860 which is included in the definition of “public trust”
under Section 2(13) of the Bombay Public Trusts Act,
1950 will come within the ambit of term “public trust”
only after it has received a certificate of registration
under Rule 8 of the Bombay Public Trusts Rules, 1951.
Once it receives a Certificate under Rule 8, then such
Society gets a status of public trust for all practical
purposes. In view of the contentions canvassed by Shri
Gordey, learned Counsel for the petitioner, question
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whether by virtue of public trust being a society, a suit
for recovery of property at the instance of Chairman,
President or Secretary of the public trust alone is
maintainable under Section 6 of the Societies
Registration Act, 1860 does not arise for consideration
before the learned Single Judge nor there is any conflict
of opinion expressed in this regard by other learned
Single Judges.
22) We answer the references in the above terms.
The record and proceedings be remitted back to the
learned Single Judges for disposal of the second appeal
and writ petition accordingly.
CHIEF JUSTICE
D.D. SINHA, J.
P.B. VARALE, J.
khj
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