Age: About 60 vs Shri Bhagirath R. Tapadiya on 14 November, 2011

Bombay High Court
Age: About 60 vs Shri Bhagirath R. Tapadiya on 14 November, 2011
Bench: G. S. Godbole
                                                -1-                               sa-100-2000


    srj
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                     
                             CIVIL APPELLATE JURISDICTION




                                                             
                                SECOND APPEAL NO.100 OF 2000
                                             WITH
                              CIVIL APPLICATION NO.1244 OF 2011




                                                            
          1     Smt. Yamunabai Dhankude                 ]
                Age: about 60, Occu: household          ]
          2     Sou. Kondabai Baburao Sakore            ]




                                                 
                Age: about 36, Occu: household          ]
          3     Shri Dashrath Chabaji Dhankude          ]

          4
                                 
                Age: about 60, Occu: Business
                Shri Ramdas Chabaji Dhankude
                                                        ]
                                                        ]
                Age: about 32, Occ: Advocate            ]
                All R/1t. 1053, Gokhale Road,           ]
                                
                "Matruda" Building, Pune 411 016        ]      ..       Appellants

                       V/s.
             


          1         Shri Raosaheb Mohanlal Chimanlal ]
                    Maniyar Trust, having its registered ]
          



                    at 1-A, CTS No.1698, Homeguard  ]
                    Building Shivajinagar, Pune 411 005. ]
                    through its trustees:-               ]
                    1. Shri Bhagirath R. Tapadiya        ]





                        Age: Adult, R/at. "Mathoshri",   ]
                        11/7, Erandwana Karve Road,      ]
                        Pune 411 004.                    ]
                    2. Shri Rajendra R. Mantri           ]
                        Age: Adult, R/at. 304, White     ]





                        House, 1482, Sadashiv Peth,      ]
                        Pune 411 030.                    ]
                    3. Shri Vijay S. Mundada             ]
                        Age: Adult, R/at. 118-B, Main    ]
                        Prabhat Road, Near Canol,        ]
                        Pune 411 004.                    ]
                    4. Sou. Dr. Sunanda S. Rathi         ]
                        Age: Adult, R/at. "Chiranjeev"   ]
                        1107, Shukrawar Peth,  Sathe     ]




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              Colony, Pune 411 002.                   ]
          5. Shri Chandrakant N. Daga                 ]




                                                                                   
              Age: Adult, R/at. Post Karjat,          ]
              Tal.: District - Raigad.                ]
          6. Shri Omprakash D. Malpani                ]




                                                           
              Age: Adult, R/at. At Post               ]
              Sangamner, Tal.: District-              ]
              Ahmednagar.                             ]      Respondents.




                                                          
    Mr. R. M. Pethe,for the Appellants
    Mr. Rajesh Datar, for the Respondents.




                                             
                             ig        CORAM               :  G.S.GODBOLE,J.
                                       RESERVED ON        : 4th OCTOBER, 2011
                                       PRONOUNCED ON  :14th NOVEMBER, 2011. 
                           
    JUDGMENT:-


    1            Pursuant   to   the   earlier   order   dated   27th  September,   2011, 
       


since the Appeal involved a short question of law, it was directed to be

heard for final hearing. Accordingly, I have heard the learned Advocates

finally on 4th October, 2011 and the Judgment was reserved.

2 The facts are not in dispute and are very brief. The

Respondents filed RCS No.1002 of 1998 against the Appellants in the

Civil Court at Pune for permanent injunction from disturbing the

possession of the Plaintiffs- Trustees over the suit property. The averments

shows that the Plaintiffs are the trustees of a Public Charitable Trust,

registered under the Bombay Public Trusts Act, 1950. The suit sought

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relief against Defendants on the ground that the Defendants were

unlawfully trying to dispossess the Plaintiffs and were disturbing the

possession of the plaintiffs trust, through its trustees.

3 In this suit, an application for rejection of plaint was filed by

the Defendants below Exhibit 26 on the ground that since the trust is

registered under Bombay Public Trusts Act, 1950, it was essential to

obtain permission of the Charity Commissioner under Section 51 of the

said Act and since said permission was not obtained, plaint was liable to

be rejected. Relying on the Judgment of the Supreme Court in the case of

Shree Gollaleshwar Dev and others v/s. Gangawwa Kom Shantayya Math

and others, reported in AIR 1986- SCC-231a and the Judgment of Single

Judge of this Court in the case of Leelavati w/o. Vasantrao Pingle and

another v/s. Dattatraya D. Kavishar and other, reported in 1988 (2), Bom.

C.R.429,b the learned Joint C. J. J. D. Pune had allowed the said

application and rejected the plaint. Aggrieved by Judgment and Order of

rejection of plaint which amounts to a decree under Section 2(2) of the

Code of Civil Procedure, 1908, the original Plaintiffs filed Civil Appeal

No.1 of 1998. By the impugned Judgment and Order dated 15th

September, 1999 the learned 3rd ADJ, Pune allowed the said appeal, order

a AIR 1986- SC-231

b 1988 (2), Bom. C.R.429

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of rejection of plaint was set aside and the application Exhibit 26 was

dismissed.

4 By order dated 9th February, 2000, Second Appeal has been

admitted by learned Single Judge (Coram: D. G. Deshpande,J.), and has

passed the following order:-

” Heard.

In view of the question raised, Appeal is admitted.”

5 It is thus clear that no substantial question of law was framed

as required by section 100 of the Code of Civil Procedure, 1908.

6 In view of this, I had indicated to the learned Advocates that

only one substantial question of law was being framed and the Advocates

have advanced their submissions on that question of law which is as

under:-

(a) Whether, considering the averments made in the plaint

where the Plaintiffs claim to be trustees of a Public Charitable

Trust registered under the Bombay Public Trusts Act, 1950 and

the nature of relief claimed in the suit, it was necessary to

obtain prior permission of the Charity Commissioner under

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Section 51 of the said Act ?

7 I have heard Mr. Pethe, appearing for the Appellants and

Mr. Datar for the Respondents. Mr. Pethe advanced the following

submissions:-

(a) Relying on the Judgment of learned Single Judge (Coram: H.

W. Dhabe J.) in the case of Vidarbha Kshtriya Mali Shikshan Sanstha v/s.

Mahatma Fuley Shikshan Samiti, Amravati, 1986 Mh. L. J.-773.c It was

submitted that considering the nature of controversy and averments made

in the plaint, the suit was governed by Section 50 of the Act and, hence,

permission was obligatory.

(b) That the property was allegedly claimed to be trust property

and hence, suit squarely falls under Section 50 of the said Act. He also

relied upon the Judgment of the learned Single Judge (Coram: A. V.

Mohta J.) in the case of Surayya Afzal Khan v/s. Raza Shah Fakir Takiya,

reported in 2006 (Supp.) Bom. C. R. 670.d Mr. Pethe also relied upon the

observations in the Judgment of Division Bench (Mr. Justice Patkar and

Mr. Justice Barlee), in Kashinath Mahadev Mahajan v/s. Gangubai Keshav

c 1986 Mh. L. J.-773

d 2006(Supp.)Bom. C. R. 670

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Nagarkar Volume- XXXII, Bombay Law Reporter, 1687.e Mr. Pethe also

relied upon the Judgment of learned Single Judge (Coram: B. G.Deo,J.) in

the case of Leelavati w/o. Vasantrao Pingle (supra) and submitted that the

Appeal deserves to be allowed.

8 On the other hand, Mr. Datar relied upon the Judgment of the

Supreme Court in the case of Shree Gollaleshwar Dev and others (supra).

He also relied upon the Judgment of the Division Bench of this Court

(Coram: M. L. Pendse and S. H. Kapadia, JJ) in the case of Amirchand

Tulsiram Gupta and others v/s. Vasant Dhanaji Patil and others, reported

in 1992 Mh. L.J. 275:1992(2) Bom. C. R. 22f and particularly observations

made in paragraphs 6 and 7. Reliance was also placed on the Judgment

of the Supreme Court in the case of Church of North India v/s. Lavajibhai

Ratanjibhai and Others, reported in (2005) 10 SCC-760g. The term

“Court” is defined under Section 2(3) of the BPT Act, 1950 and the term

“persons having interest” is defined under Section 2(10) of the said Act

which reads thus:-

“2. Definitions:- In this Act unless there is anything repugnant in

the subject or context,-

e Volume- XXXII, Bombay Law Reporter, 1687

f 1992 Mh. L. J. 275:1992(2) Bom. C. R. 22
g (2005) 10 SCC-760

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[10] “person having interest” [includes]

(a) in the case of a temple, person who is entitled to attend at
or is in the habit of attending the performance of worship or
service in the temple, or who is entitled to partake or is in that

habit of partaking in the distribution of gifts thereof,

(b) in the case of a math, a disciple of the math or a person of
the religious persuasion to which the main belongs,

(c) in the case of a wakf, a person who if entitled to receive

any pecuniary or other benefit from the wakf and includes a
person who has right to worship or to perform any religious rite
in a mosque, idgah, imambara, dargah, maqbara or other
religious institution connected with the wakf or to participate in

any religious or charitable institution under the wakf,

(d) in the case of a society registered under the Societies

Registration Act, 1860 (XXI of 1860), any member or such
society, and

(e) in the case of any other public trust [any trustee or

beneficiary]

10 Sections 50 and 51 of the said Act read thus:-

50. Suit by or against or relating to public trusts or trustees or others

– In any case,

(i) where is alleged that there is a breach of a public trust,

negligence,misapplication or misconduct on the part of a
trustee or trustees,

(ii) where a direction or decree is required to recover the
possession of or to follow a property belonging or alleged to be
belonging to a public trust or the proceeds thereof or for an

account of such property or proceeds from a trustee, ex-trustee,
alienee, trespasser or any other person including a person
holding adversely to the public trust but not a tenant or
licensee,

(iii) Where the direction of the Court is deemed necessary
for the administration of any public trust, or

(iv) for any declaration or injunction in favour of or against a

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public trust or trustees or beneficiary thereof,

the Charity Commissioner after making such enquiry as he thinks
necessary, or two or more persons having an interest in case the suit is

under sub-clauses (i) to (iii), or one or more such persons in case the suit
is under sub-clause (iv) having obtained the consent in writing of the
Charity Commissioner as provided in section 51 may institute a suit
whether contentions or not in the Court within the local limits of whose

jurisdiction the whole or part of the subject-matter of the trust is situated,
to obtain a decree for any of the following reliefs:-

(a) an order for the recovery of the possession of such

property or proceeds thereof;

(b) the removal of any trustee or manager;

(c) the appointment of a new trustee or manager;

(d) vesting any property in a trustee;

(e) a direction for taking accounts and making certain enquiries;

(f) an order directing the trustees or others to pay to the
trust the loss caused to the same by their breach of
trust, negligence, misapplication, misconduct or willful
default;

(g) a declaration as to what proportion of the trust
property or of the interest therein shall be allocated to

any particular object of the trust;

(h) a direction to apply the trust property or its income cy pres on
the lines of section 56 if this relief is claimed along with any
other relief mentioned in this section;

( i ) a direction authorising the whole or any part of the
trust property to be let, sold, mortgaged or exchanged
or in any manner alienated on such terms and
conditions as the court may deem necessary;

(j) the settlement of a scheme, or variations or alterations in a

scheme already settled;

(k) an order for amalgamation of two or more trusts by
framing a common scheme for the same;

(l) an order for winding up of any trust and applying the
funds for other charitable purposes;

(m) an order for handing over of one trust to the trustees
of some other trust and deregistering such trust;

(n) an order exonerating the trustees from technical
breaches, etc;

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(o) an order varying , altering, amending or superseding
any instrument of trust;

(p) declaring or denying any right in favour of or against,
a public trust or trustee or trustees or beneficiary
thereof an issuing injunctions in appropriate cases; or

(q) granting any other relief as the nature of the case may
require which would be a condition precedent to or
consequential to any of the aforesaid relief’s or is
necessary in the interest of the trust:

Provided that no suit claiming any of the reliefs specified
in this section shall be instituted in respect of any public trust,
except in conformity with the provisions thereof:

Provided further that, the Charity Commissioner may

instead of instituting a suit make an application to the Court for
a variation or alteration in a scheme already settled:

Provided also that, the provisions of this section and other
consequential provisions shall apply to all public trusts, whether
registered or not or exempted from the provisions of this Act
under sub-section (4) of section 1].

51. Consent of Charity Commissioner for institution of suit.

(1) If the persons having an interest in any public trust intend
to file a suit of the nature specified in section 50, they shall
apply to the Charity Commissioner in writing for his consent.

[If the Charity Commissioner after hearing the parties and
making such enquiries (if any) as he thinks fit is satisfied that
there is a prima facie case, he] may within a period of six
months from the date on which the application is made, grant
or refuse his consent to the institution of such suit. The order

of the Charity Commissioner refusing his consent shall be in
writing and shall state the reasons for the refusal.

(2) If the Charity Commissioner refuses his consent to the
institution of the suit under sub-section (1) the persons
applying for such consent may file an appeal to the
[Maharashtra Revenue Tribunal], in the manner provided by
this Act.

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(3) In every suit filed by persons having interest in any trust
under section 50, the Charity Commissioner shall be a necessary

party.

(4) Subject to the decision of the [Maharashtra Revenue

Tribunal] in appeal under section 71, the decision of the Charity
Commissioner under sub-section (1) shall be final and
conclusive.”

11 For deciding the application under Order VII Rule XI of the

Code of Civil Procedure, 1908, the averments made in the plaint alone

will have to be looked into.ig

12 In the case of Shree Gollaleshwar Dev and Others(supra), the

Supreme Court has observed in paragraph 13 as under:-

” It is clear from these provisions that S. 50 of the Act
created and regulated a right to institute a suit by the Charity

Commissioner or by two or more persons interested in the
trust, in the form of supplementary statutory provisions
without defeasance of the right of the manager or a trustee or a
shebait of an idol to bring a suit in the name of idol to recover

the property of the trust in the usual way.”

13 In the case of Amirchand Tulsiram Gupta and others (supra),

it is observed in paragraph 7, which reads thus:-

” It is necessary in this connection to refer to the decision
reported in A.I.R. 1986 S.C. 231 (Shree Gollaleshwar Dev and
ors v. Gangawwa Kom Shantayya Math and others). The
Supreme Court held that section 50 created and regulated a
right to institute a suit by the Charity Commissioner or by two

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or more persons interested in the trust, in the form of
supplementary statutory provisions without defeasance of the

right of the manager or a trustee or a shebait of an idol to
bring a suit in the name of idol to recover the property of the
trust in the usual way. In other words the Supreme Court

accepted the view taken by the Division Bench of this Court
that the right of a trustee to bring a suit in the usual way, that
is in exercise of rights under the Common Law is not affected
by provisions of section 50 of the Public Trusts Act. The ratio

laid down by the Supreme Court was followed by a Single
Judge of this Court in the decision reported in 1986 Mah. L.J.

773 (Vidarbha Kshatriya Mali Shikshan Sanstha v. Mahatma
Fuley Shikshan Samiti, Amravati), holding that trustees who

want to enforce their civil rights are not covered by definition
of the expression “person having interest” and are entitled to

file suits without obtaining prior permission. The same view
was taken by another Single Judge of this Court in the
decision reported in 1988(2) Bombay Cases Reporter 429,

(Leelavati w/o Vasantrao Pingle v. Dattatraya D. Kavishar &
Others). The
same view was taken by another Single Judge in
an unreported decision dated September 13, 1990 delivered in
Original Side Suit No.958 of 1975 and the decision of the

Single Judge was confirmed in Appeal No.1315 of 1990 by the
Division Bench by judgment dated March 14, 1991. The

Division Bench specifically disapproved the view taken by the
trial Court in the present case holding that the decision
reported in 69 Bom. L. R. 472 Rajgopal Raghunathdas Somani
v. Ramchandra Hajarimal Jhavar,
still holds filed and section

50 does not prohibit a suit being filed by trustees to recover
possession from a trespasser without obtaining prior
permission. We are in respectful agreement with the view
taken by the Division Bench and the learned Single Judges,
and we entirely disagree with the finding of the trial Judge

that the suit was not maintainable in absence of permission.
The learned trial Judge was clearly in error in holding that
after amendment of section 50 and section 2(10)(e) it is
incumbent upon the trustees to obtain prior approval of the
Charity Commissioner to institute suit against a trespasser for
recovery of possession. As the finding of the trial Judge on
this count is set aside, consequently the finding that the High
Court had no jurisdiction to entertain the suit and the suit
could be filed only in the City Civil Court after obtaining prior

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– 12 – sa-100-2000

approval cannot stand.”

14 In the case Church of North India (supra), the Supreme Court

has considered the entire scheme of the B.P.T. Act, 1950 and the earlier

Judgment of the Supreme Court in the case of Shree Gollaleshwar Dev

and others (supra) was referred and in paragraph 98 it is held that if a

question which is outside the purview of the Act or in relation to the

possession of the trust property arises, Civil Court will have jurisdiction.

15 In the aforesaid legal background, perusal of the averments

made in the plaint clearly shows that the suit is filed in the ordinary Civil

Court and not under the “Court” as defined under Section 2(4) of the said

Act of 1950. The suit is for injunction instituted on the basis of averments

that the Defendants/ Applicants herein are trying to disturb and obstruct

the peaceful possession and enjoyment of the trustees representing the

trust and were obstructing the construction of compound wall which was

being erected for safe guarding the trust property. The said suit is,

therefore, out side the purview of the said Act of 1950, though the trusts

are “persons having interest” under Section 2(10) of the said Act as held

by the Supreme Court in the case of Shree Gollaleshwar Dev and others

(supra).

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    16              In the case of   Leelavati w/o Vasantrao Pingle (supra), the 




                                                                                     

learned Single Judge held in paragraph 11 that:-

” The other course is that trustees, without moving the

Charity Commissioner, as owners of the property, can, like an
ordinary owner, file a suit against a trespasser in the ordinary
Court having original Civil jurisdiction over the subject-matter
of the suit. The present suit is of such a type filed before the

Civil Judge, Junior Division, Chikhli.”

17 This judgment has been specifically approved by the Division

Bench in the case of Amirchand Tulsiram Gupta and others (supra).

Since the suit is filed in the ordinary Civil Court by the trustees for a

prohibitory injunction against the third party, the provision of Sections 50

and 51 of the Act are not attracted. In such a suit, question which is

required to be decided or determined by any authority under the said Act

is not raised and, hence, the bar contained under Section 80 of the said

Act of 1950 is not applicable. Hence, the question of law which has been

framed above will have to be answered in favour of the Respondents/

Plaintiffs.

18 Second Appeal is, therefore, dismissed. On account of

dismissal of the Second Appeal, Civil Application No.1244 of 2010 does

not survive and same is also dismissed.

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    19          Record and proceedings of RCS No.1002 of 1998 shall be sent 




                                                                             
    back to the Trial Court forthwith.

    20          The learned Judge of the Trial court is directed to hear and 




                                                     

decide the said Suit on or before 30th September,2012.

(G.S.GODBOLE,J.)

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