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Harinarayan Shaw And Anr. vs Gobardhandas Shroff And Ors. on 16 August, 1951

Calcutta High Court
Harinarayan Shaw And Anr. vs Gobardhandas Shroff And Ors. on 16 August, 1951
Equivalent citations: AIR 1953 Cal 140
Author: R Mookerjee
Bench: R Mookerjee, Lahiri


R.P. Mookerjee, J.

1. The plaintiff respondent filed the suit out of which this appeal arises for recovery of possession of a particular property after declaration of title and also for damages. The plaintiff’s case was that the property in suit belonged to the Srinagar Dharmasala Trust Fund which had been let out

in tenancy. On 30-7-1942, possession was obtained after a decree in ejectment had been passed against the tenant. About May, 1946, defendant 1 unlawfully took possession of the land, illegally constructed certain temporary sheds and let out the same to defendants 3 and 4. Defendant 2 had also raised a platform in one portion of the land in collusion with defendant 1 without the knowledge of the plaintiff.

2. The principal defence was raised on behalf of defendant 1 who denied the plaintiff’s title, claimed that he was not a trespasser, but his father had been in possession since 1939 With the consent of the plaintiff. Defendants 3 and 4 were claimed as tenants.

3. Defendant 3 claimed to be a tenant, and was ready to pay rent either to defendant 1 or to the plaintiff whoever was entitled to the same. Defendant 4 also claimed to be a tenant under defendant 1.

4. Defendant 2 Kripal Das alias Sadhu Baba raised various defences about the frame of the suit. Defence as to misjoinder of parties, also was raised as Iswar Kripaleswar Thakur, a Deity alleged to have been consecrated on. a portion of the land, had not been impleaded. He also denied the title of the plaintiff and claimed right by adverse possession.

5. The suit had originally been filed by Srinagar Dharmasala Trust Fund, a Society registered under Act XXI of 1860. Subsequently, the cause title was allowed to be amended and the plaintiff is now described as :

“Gobardhan Das Shroff, authorised Trustee. Srinagar Dharmasala Trust Fund, a society registered under Act XXI of 1860 having its registered office at 184, Cross Street, Calcutta.”

6. Various Issues had been raised in the Lower Court. It is not necessary for our present purposes to refer to all of them, as on behalf of the appellants only a few points have been pleaded. The Trial Court decreed the plaintiff’s suit. The Society’s alleged title to the land was declared with a direction that the said Society was to recover ‘khas’ possession by evicting the defendants therefrom. If the defendants did not remove the structures and other things from the land in suit within a particular date fixed, the plaintiff would recover ‘khas’ possession by removing the structures in execution of the decree. Mesne profits were decreed from May, 1946 against defendant 1 alone till the date of recovery of possession.

7. The only points urged in support of this appeal preferred by defendants 1 and 2 are (1) that the plaintiff Society has no right, title and interest in the disputed property, (2) that Gobardhandas Shroff alone describing himself as trustee of the Srinagar Dharmasala Trust Fund is not entitled to maintain the present suit, and (3) that defendant 2 has acquired title by adverse possession.

8. The first and principal question raised in this appeal as to whether the property in suit now belongs to the Srinagar Dharmasala Trust Fund, as a registered Society, depends for its decision on an interpretation of the provisions contained in the Societies Registration Act 1860 (Act XXI of 1860). Before we refer to the provisions of that Act it is necessary that the relevant facts of the present case may be shortly stated.

9. The property in suit was purchased in October, 1918, by one Haribux from the Trustees Calcutta Improvement Trust. The successors in interest of Haribux transferred the property on 30-8-1937, in favour of three persons, viz., Lachmi Narayan Shroff, Shewram Shroff and Durga Prosad Shroff, as trustees of Srinagar Dharmasala Trust Fund. On the 7th October following, these three purchasers along with four other persons formed themselves into a Society and got it registered under Act XXI of 1860. The Society was described as the Srinagar Dharmasala Trust Fund. According to the plaintiff, the Srinagar Dharmasala Trust Fund had been in existence from before. It is not necessary for our present purpose to come to a decision whether there had been such a trust before 30-8-1937, when the property in suit was purchased by the three persons in their capacity as Trustees of the said Fund. Although it is conceded that the property in question was vested in those three persons as Trustees, it is contended that the Registered Society could not have any right over the said property as there had been no conveyance executed in favour of the Society. It is urged that unless there be a regular deed of conveyance in favour of the registered Society, the latter has no ‘locus standi’ to maintain the suit or to claim any relief, in respect of that property.

10. It is accepted that when the property was transferred on 30-8-1937, in favour of the three persons as trustees, title had vested in the latter. The right, if any, of the registered Society in respect of the property has been derived, if at all, by the fact of that Trust Fund having been registered under Act XXI of 1860.

11. It is, therefore, necessary to examine the provisions of the Societies Registration Act (XXI of 1860) as also the terms of the Memorandum of Association and the Rules and Regulations filed along with the Memorandum.

12. It appears from exhibit 2, the Memorandum of Association of Srinagar Dharmasala Trust Fund, that the object of the Society includes (as stated in Clause 3 (a) of the Memorandum) taking
“… over and manage the properties if any movable and immovable belonging to the Trust Fund and standing in the names of Luchminarain Shroff, Sewaram Shroff and Durga Prosad Shroff or any of them as Trustee or Trustees of the said Trust or in the name of any other person or persons on behalf of the Trust Fund.”

13. Clause 3(h) of the Memorandum further specifies another object of the Society being
“To hold and manage the movable and immovable properties already acquired by the Society and purchase, acquire or take on lease and manage all lands and buildings necessary for the society ….. or lease any
property belonging to the Society with the sanction of the executive committee.”

14. Rule 17 of the Rules and Regulations of Srinagar Dharmasala Trust Fund provides :

“The Society shall have three trustees in whom the fund and properties of the Society both movable and immovable shall be vested accordingly as the Committee may decide from time to time.”

15. The properties referred to in Rule 17, include No. 18 Pal Street, Calcutta the property in dispute in the present case.

16. Under Clause 3(1) of the Memorandum of
Association it is competent for the Society,
“From time to time to appoint Trustees to
take charge of and manage the Trust Funds
and properties movable and immovable of

the Society and to perform and carry out its objects.”

17. Under Clause 5 of the Memorandum read with Rule 8, of the Rules and Regulations it is provided that the first trustees shall be. the same three persons in whom the property in suit had been vested at least from 30-8-1937, if not from before, as trustees of the Srinagar Dharmasala Trust Fund.

18. It is, therefore, clear from the Memorandum of Association and the Rules and Regulations of the registered Society that what had been the principal object of the unregistered Society continued to be one of the objects of the registered Society also, namely, among other as in Clause 3(b) of the Memorandum –

“To erect Dharmasalas at different places of pilgrimage and there to arrange for the accommodation of pilgrims, and when necessary, to provide for their food as well.”

19. It also appears that the same body of persons has continued to function after the registration of the Society as trustees.

20. Now, the question is whether by the fact of the Society being registered, the latter has now become entitled to hold the property subject to the Trust and powers of the Trustees.

21. On reference to the Preamble to the Societies Registration Act, 1860, it would appear that the Legislature was making provision,
“for improving the legal condition of societies established for the promotion of …… charitable purposes.”

22. The various provisions contained in the Act itself make it clear that by registration, an unregistered Society acquires a status only to make it more convenient for the carrying out the purposes for which the unregistered society had existed.

23. Sections 17 and 18 of the Act make specific provisions for pre-Act unregistered societies, — as to how they are to be registered.

24. It was contended on behalf of the appellants that by the registration of a society no title in any property is affected.

25. Section 5 of the Act makes specific provision as to how the property of the society is vested. This section is in the following terms :

“The property, movable and immovable, belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their proper title.”

26. Mr. Chakravarti, on behalf of the defendants appellants, contends that under this section there is no automatic transfer of title from the original owners, members of an unregistered society, to the Registered Society. It is overlooked that whatever may be the position in respect of property owned by individuals personally, and we are not called upon to decide that question in the present appeal, in the case of properties which are vested in trustees from before the registration of a Society, such registration only gives a legal status to the Institution and makes it convenient for the due performance of the objects of the Society.

27. In the present case there had been no pre-existing Deeds of Trust. There were no detailed rules governing the Trust and, therefore, no question of any conflict between the terms of a pre-existing Trust and the Rules and Regulations of the Registered Society arises. When the old three trustees joined with

four others to be registered as a society, the same three persons continued to be the trustees, and they bring themselves under the provisions contained in the Memorandum of Association and the Rules and Regulations. By operation of the provisions contained in Section 5 of the Act, and the very purposes for which Registration is provided in the Act the registered society automatically obtained rights over the property. The property is at the disposal of the Society, subject, no doubt, to the Trust. The property continues to be vested in the Trustees as before. Under Section 5 of the Act, a property, whether “vested in trustees” or be “deemed to be vested in the Governing Body of such Society” may still belong to a Society registered under the Act.

28. It must, therefore, be held that the disputed property which was vested in the trustees before registration of the society, became, as from after the registration of the Society, a property “belonging to the society” and be deemed to be the property of the Society. As a matter of fact, and strictly speaking, there is no transfer of ownership. That which belonged to an unregistered Society continues after the change in status of that Society on being registered, as being belonging to the registered Society. The first point raised on behalf of the appellants must, therefore, be overruled.

29. Once it is found that the property in suit belongs to the Registered Society and the Rules and Regulations attached to the Memorandum of Association, when the Society was formed, apply to the property in suit, the next objection raised must also be negatived. On behalf of the Appellants it is contended that there could be no delegation to Gobardhandas Shroff as the sole trustee on behalf of the registered Society to file a suit on behalf of the Society. It is not the Appellant’s case now, whatever might have been the attitude taken” up in the trial C9urt, that the Managing Committee of the Society had not passed resolution authorising Gobardhandas Shroff to file the present suit. Reference may be made to Exhibits 7 (a) and 7(b) for the relevant resolutions of the Committee in this connection.

30. On behalf of the appellants, the objection is put in this way. Under Rule 32, the Secretary alone has the power, among other things,
” …to institute and defend suits or proceedings for and on behalf of the Society.”

31. Rule 15 provides that without prejudice to the generality of powers conferred by the Rules, the Executive Committee of the Society will have powers ‘inter alia’,
“(g) to institute, conduct, defend, compound, refer to arbitration or abandon any legal proceeding for or against the Society, (h) to delegate the above or any of the above powers to the office bearers or trustees or any one of them.”

32. It is argued that when the Secretary is specifically authorised under Rule 32 to represent the Society in legal proceedings, it is not competent for the Society to delegate under Rule 32, some person other than the Secretary, to file a suit on behalf of the Society. Rule 15 being a general provision must be read subject to the limitations contained in Rule 32.

33. It is not necessary for us to consider whether the general proposition relied upon by Mr. Chakravarti making Rule 15, subject to the provisions contained in Rule 32, is well founded or not, inasmuch as, we cannot accept the

interpretation put by him on the latter Rule. It will not be correct to interpret the last few words of Rule 32, as being a general provision authorising the Secretary to institute and defend all suits and proceedings. It is significant that this authority to institute and defend suits is part of a sentence which reads as follows :

“The Secretary shall have the power to open in the name of the Society current accounts with such Bank or Banks as the Committee may direct for monies not vested in the Trustees and issue, draw, sign, accept, endorse and negotiate all cheques and drafts and institute and defend suits or proceedings for and on behalf of the Society.”

34. We have to take the sentence as a whole and the authority given to the Secretary under this the last sentence of Rule 32, must be read as limited to such acts and particular transactions as are referred to in the earlier part of that sentence. If we refer to Rule 32, as a whole also, it is significant that all the powers and directions given to the Secretary not only in the last sentence quoted above, but in the earlier part of that Rule also, relate to the opening of accounts in Banks and dealing with monies and securities, belonging to the Society, and not vested in Trustees.

35. In the first place, therefore, we must hold that the authority given to the Secretary in Rule 32, is limited to those particular types of transactions as are referred to in that Rule, Moreover, the property now in suit is admittedly a property vested in Trustees, and therefore, Rule 32 will not be attracted at all. Rule 32 does not vest any authority in the Secretary to deal with such property and to represent the Society in all suits and litigations in respect of such property vested in Trustees. On reference to Rule 32, it will appear that repeated references are made to exclude properties vested in Trustees, from the operation of that Rule.

36. The authority, therefore, under which a person may represent the Society in a suit, whether in respect of a property vested in Trustees or relating to matters not covered by Rule 32, can only be delegated to a person as under Sub-rule (h) of Rule 15. This is exactly what has been done in the present case.

37. Provisions contained in Section 6, Societies Registration Act, do not, therefore, make Sub-rule (h) of Rule 15, ultra vires. We have held that Rule 32 has no application in the present case and that also there is no specific provision in the Rules as to who will represent the Society in such a litigation. The second part of Section 6 of the Act authorises the Governing Body to appoint the delegate as to who would represent the Society. Sub-rule (h) of Rule 15 also does the same thing. It is not the case of the appellants that apart from the provisions contained in Rule 32, which we have held as inapplicable in the present case, there was any separate resolution passed by the Committee authorising the Secretary to institute the present suit.

38. Reliance was placed on behalf of the appellants on the fact that the Secretary had presumably under Rule 32 of the Rules represented the Society in a suit in ejectment brought by the Society in respect of the property in suit. No attempt was, however, made to prove that the Secretary had not, on that occasion, been specially authorised to institute that suit as one of the Trustees had been in the present case. No question about the competence of the Secretary to file the earlier suit had been

raised in the defence in that suit. In the absence of relevant evidence, it is not open to the defendants in the present case to assume that it is the Secretary and Secretary alone who could and did represent the Society in respect of suits brought relating to the property now in suit and that also without any specific resolution of the Committee.

39. It is competent for the Governing Body, that is the Executive Committee, under Sub-rule (h) of Rule 15, to delegate such powers to the office bearers or trustees or any one of them. The delegation made by the Committee to Gobordhandas Shroff one of the Trustees, to institute the present suit was, in order and the suit as framed is legally maintainable.

40. Both the questions of law raised on behalf of the appellants, therefore, fail.

41. A faint attempt was made to contest that defendant 2 has not proved his title by adverse possession.

42. With regard to the question of adverse possession the learned Subordinate Judge has found, on an examination of the evidence in the case, that the alleged Sivalingam standing on a platform in one part of the disputed property was never consecrated, and in any view was not shown to have been put there beyond twelve years. Apart from the question whether there was any Sivalingam, the case as made by the defendant 2 is that the portion of the property which was being possessed by him was by and on behalf of the Deity. Defendant 2 did not claim any personal right. The claim of defendant 2 cannot, therefore, be in assertion of his personal right over any portion of the property. As stated already, on the strength of the plan attached to the Sale Deed of 1918, the learned Subordinate Judge was justified in coming to the conclusion that there was no platform in existence in 1918. We do not see any reason to disbelieve the definite statement made by Chandi Prosad Maitra, plaintiff’s witness 5, that the platform was constructed after the ejectment suit and that the alleged Sivalingam was put up thereafter. The finding reached is that the platform together with the alleged Sivalingam did not come into existence before 1946. No question of adverse possession can, therefore, arise on the facts.

43. The decision reached by the learned Subordinate Judge on the question of mis-joinder of parties was not pressed before us. The conclusion by the lower Court that there was no Sivalingam at all remains unchallenged and accordingly it is not open to the appellants to press, the question of adverse possession at all in the present appeal.

44. All the points raised on behalf of the appellant fail.

45. The learned Subordinate Judge had allowed the defendants time till the end of September, 1949, for removing the structures and other things from the suit lands. In modification of that order, the defendants will be allowed time till 30-11-1951.

46. Subject to the modification indicated above, the decree of the Court below is affirmed and this appeal is dismissed with costs to the plaintiff-respondent.

Lahiri, J.

47. I agree.

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