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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2714/2008
Patil Patwari Saraya Sansthan,
Morshi, Registration No. E-59,
through its Secretary
Shri Gokulrao Sheshrao Deshmukh,
R/o Ramnagar, Morshi,
Tah. Morshi, Distt. Amravati ...PETITIONER
...versus...
Vasant Mahadeorao Akarte (Dead)
by L.Rs.
1) Smt. Kusumbai wd/o Vasant Akarte,
aged about 65 years,
2) Prashant s/o Vasant Akarte,
aged about 40 years,
3) Pravin s/o Vasant Akarte,
aged about 33 years.
Nos. 1 to 3, R/o. Near Govt. Hospital,
Morshi, Tq. Morshi, Distt. Amravati
4) Sau. Anita w/o Dilip Kale,
aged about 35 years,
R/o. Wardhamaneri, Tah. Arvi,
Distt. Wardha.
5) Sau. Yogita Awinash Wankhade,
aged about 30 years, R/o. Chandrur
Bazar, Tq. Chandur Bazar,
Distt. Amravati ..RESPONDENTS.
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Shri K.N.Dadhe, Adv. for the petitioner,
None for respondents
CORAM : S.R.DONGAONKAR, J.
DATE : 16th JANUARY, 2009
ORAL JUDGMENT
1. Heard Shri Dadhe, Advocate, for the petitioner.
None for the respondents though served, for final disposal.
Heard on merits forthwith.
2. The petitioner is a Trust bearing Registration No.
E-59 of Amravati. It had brought R.C.S.No. 53/2002
before the Civil Judge, Junior Division, Morshi, for
eviction, possession, arrears of rents and mesne profit
against one Vasant Mahadeorao Akarte, of whom the
present respondents are L.Rs. In the suit proceeding, the
then defendant filed W.S. Amongst other defences, he
also contended that the suit was barred by principle of
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res-judicata and the Secretary G.S.Deshmukh had no
right to file the said suit for want of compliance of
provisions of Indian Trust Act. The issues were framed.
The plaintiff led his evidence. It appears that the
defendant did not lead any evidence though he contested
the matter. The learned Civil Judge relying on the
observations of Gujrat High Court in AIR 1973 Guj 113
(Atmaram
Ranchhodbhai vs. Gulamhusein Gulam
Mohiyaddin and other) and this court in 1994 Mh L J
280 (Nagar Wachan Mandir, Pandharpur vs. Akbaralli
Abdulhusen and sons and others), found that as all
trustees of the petitioner/plaintiff trust were not party
plaintiffs to the suit, the same was liable to be dismissed.
He has found that instrument of trust was not filed on
record. He further found that the plea was taken by the
respondent/defendant that the suit was barred by res-
judicata and the plaintiff had not shown new cause of
action, as such also the suit was liable to be dismissed.
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Other issues were cursorily addressed by the learned
Civil Judge. Consequently he dismissed the
plaintiff/petitioner’s suit by the judgment dated 3.9.2004.
3. Petitioner/plaintiff then preferred an appeal
R.C.A. No. 220/2004 before the District Judge, Amravati.
The learned District Judge-I, Amravati, found that the suit
was not properly instituted by all the trustees of the trust
and therefore, he held that the suit was liable to be
dismissed and therefore, he dismissed the appeal.
4. These judgments are challenged in this Writ
Petition.
5. Learned counsel for the petitioner has submitted
that the plaintiff’s evidence coupled with the documents
which he had produced, has clearly established that all
the trustees of the petitioner’s trust by resolution had
authorized the Secretary Shri G.S.Deshmukh to institute
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the instant suit, so also the instrument of trust provides
for such authorization and Secretary of the Trust can
institute such a suit. Therefore, the authorities referred
by the learned Civil Judge as well as learned District
Judge were not applicable to the instant matter.
According to him, when the plaintiff has deposed about
the authorization, and no evidence was led by the
defendants otherwise to disprove such authorization, the
plaintiff’s suit would not fail. He has relied on the
Division Bench judgment of this Court in Rashid A.
Maskati and another vs. State of Maharashtra and
others (1998 (2) Mh.L.J. 188). He, therefore, submitted
that the courts below have taken a wrong view of the
matter and dismissed the plaintiff’s suit, so also the
appeal. As the courts below had erred on appreciating
the legal issue in proper perspective, this petition should
be allowed and those judgments be quashed and set
aside.
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6. As stated above, none appeared for the
respondents though served.
7. As only legal issue is being considered, it is
necessary to peruse the observations of the Gujrat High
Court in AIR 1973 SC 113; Atmaram Ranchhodbhai
vs. Gulamhusein Gulam Mohiyaddin and others. In
para 8, it has been observed thus-
“8. It is, therefore, clear that one co-trustee cannot
give notice to quit determining the tenancy. The
decision to determine the tenancy by giving notice
to quit must be taken by all co-trustees unless, ofcourse, the instrument of trust otherwise provides,
or the beneficiaries being competent to contractconsent, or in any particular case it is established
that on the peculiar facts obtaining in that case,
the delegation of the power to determine thetenancy was 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 that
the decision to terminate the tenancy must betaken by all the co-trustees. The formal act of
giving notice to quit pursuant to the decision taken
by all the co-trustees may be performed by one 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 the co-trustees
and would be clearly a notice given by all co-
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trustees.
8. This court in Nagar Wachan Mandir,
Pandharpur vs. Aklbaralli Abdulhusen and Sons and
others (1994 Mh.L.J. 280 ) has observed in para 11,
thus-
“After hearing both the learned counsel I am not
inclined to accept the submission of Shri
Abhyankar whereas I am inclined to accept thecontentions of Shri Apte as I find that the Full
Bench decision of Gujarat reported in AIR 1973Gujarat 113, Atmaram Ranchhodbhai vs.
Gulamhjusein Gulam Mohiyaddin (supra) is
directly on the point and arises under the Rent
Act. It has been held by the Full Bench of Gujaratthat unless instrument of trust otherwise provides
all co-trustees must join for filing a suit to recoverthe possession of the property from the tenant. It
is nobody’s case in this matter that the instrument
of the Trust provides otherwise. In fact,instrument of the trust is not even produced on the
record, and on the proper construction of Sections
47 and 48 of the Indian Trust Act which are
reproduced above, the contention raised by ShriApte is correct. Section 47 clearly deprives the
trust from delegating his office in any of his duties
to co-trustee or to a stranger unless conditions
mentioned in the said section are complied with.
It is not in dispute in this matter that the
conditions referred to in section 47 are not
complied with by the plaintiffs. When one reads
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both section 47 and section 48, it would not be
difficult to record a finding that the present suit
filed by the two trustees is not maintainable. The
second submission with reference to Section 6 of
the Societies Registration Act, 1980 cannot be
accepted in view of the definition of Public Trust
given in section 2 (13) of the Bombay Public Trust
Act. Section 2(13) of Public Trusts Act reads as
follows:-
“Public Trust means an express
or constructive trust for either publicreligious or charitable purpose or both
and includes a temple, a Math, Wakf,Church, Synagogue, Agiary or other place
of public religious worship a dharmada orany other religious or charitable
endorsement and the Society either for
religious or charitable purpose or for both
and registered under the SocietiesRegistration Act, 1860.”
Considering the said definition of the Public Trust,
it is very clear that the society registered under
the provisions of Societies Registration Act, 1860,
is also included in the definition of the said Public
Trust and hence suit filed only by two trustees will
not be maintainable. Granting of a lease is a
matter, which cannot be delegated by a trustee
and, therefore, it must follow as a necessary
corollary that determination of a lease also cannot
be regarded as a matter which can be delegated
by a co-trustee to another co-trustee or to any one
else. The power and function to determine the
lease is of the same nature and as the power and
function to grant a lease cannot be delegated,
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equally other cannot be. Both the functions are
effected with beneficiary’s judgment. All the co-
trustees are bound to exercise their judgment and
no one co-trustee can delegate these functions to
his co-trustee or to any other person. These
observations made by the Full Bench apply to the
facts of the present case and for the same
reasoning I refuse to accept the contention raised
by Shri Abhyankar”.
9. On perusal of these two judgments, it would be
seen that the facts of those cases were such that the
instrument of trust did not provide for filing the suit or
defending the suit by one of the trustees or chairman or
the secretary of such trust.
10. In this regard, therefore, it is necessary to closely
note the provisions of section 47 & 48 of the Indian Trust
Act, which read thus-
47. Trustee cannot delegate. – A trustee cannot
delegate his office or any of his duties either to a
co-trustee or to a stranger unless (a) the
instrument of trust so provides, or (b) the
delegation is “in the regular course or business, or
(c) the delegation is necessary, or (d) the
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10beneficiary, being competent to contract, consents
to the delegation.
Explanation – The appointment of an attorney or
proxy to do an act merely ministerial and involvingno independent discretion is not a delegation
within the meaning of this section.
48. Co-trustees cannot act singly. – When
there are more trustees than one, all must join in
the execution of the trust, except where the
instrument of trust otherwise provides.”
The provisions require that if there are more trustees than
one, then all trustees must join in the execution of the
trust, except where the instrument of trust otherwise
provides.
11. The Societies Registration Act, 1860, Section 6
provides thus –
“6. How suits by and against societies. –
Every society registered under this Act may sue or
be sued in the name of the President, Chairman,
or Principal Secretary in default of such
determination, in the name of such persons as
shall be appointed by the governing body of the
occasion:
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Provided that it shall be competent for
any person having a claim or demand against the
society, to sue the president or chairman, orprincipal secretary or the trustees thereof, if on
application to the governing body some otherofficer or person be not nominated to be the
defendant.”
12. In the present case, the evidence led by the
plaintiff shows that the plaintiff had produced some
documents on record. One of them is Exh. 42 which is
the resolution of the trustees of the petitioner Trust,
which reads thus-
“Resolution No. (6)
Regarding delegation of powers for Court
actions in respect of property of the Trust.
It is unanimously resolved by all the
trustees of the Trust that powers for Court actions,
for legal proceedings and other Court formalities
etc., in respect of the movable and immovable
properties of the Society are delegated to ShriG.S.Deshmukh, Secretary of the Society.
Resolution is unanimously resolved.
Proposer : Shri R.G.Kanfade,
Seconder : Shri Punabrao Raut.
After unanimously resolving the above
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12mentioned resolution and after giving vote of
thanks, the President has declared the meeting to
be over.
Sd/- sd/-
Member Secretary Tulsiram Sudebhanji Padole
President of the Meeting
Dt. 3.11.94"
It would be seen that all the rights in respect of movable
and immovable properties for court actions, the authority
was granted the Secretary Shri G.S.Deshmukh, who had
deposed in favour of the plaintiff.
13. This takes me to consider the documents which
are placed now on record in the petition. It appears that
in Suo Muto Inquiry No. 7/91, the Assistant Charity
Commissioner, Amravati Region, Amravati, by order, had
framed a scheme in respect of the petitioner trust. Clause
6 of the said scheme provides thus-
(6) Holding and ownership of property by the
Public Trust – Whole movable and immovable
property would stand in the name of the trust.
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13the scheme and the Rules framed under Public
Trust Act, 1950 and the same would be within the
custody of the trustees.
It further shows that the Secretary of the trust was obliged
to execute the resolution of the trust as his duty.
Therefore, he was duty bound to execute the resolution of
the trust referred above. It would thus be seen that in the
present case there was an instrument of trust which cast
a duty on the Secretary of the Trust to carry out the
execution of the resolution of the trust. Once this
resolution is passed by the trustees of the petitioner trust,
the Secretary was duty bound to carryout the Court
proceedings on behalf of the petitioner trust. In this view
of the matter, therefore, the authorities referred by the
Courts below at the instance of the respondents i.e.
AIR 1973 Gujarat 117; Amritlal Nathubhai Shah and
others vs. Union Government of India and another and
1994 Mh,L.J. 280; N.W.Mandir vs. Akbaralli, would not
be applicable to the set of facts in the instant case.
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14. In this regard, the view expressed by the Division
Bench of this Court in 1998(2) Mh.L.J. 188; Rasheed A.
Maskati and another vs. State of Maharashtra and
others, is thus-
“In the writ petition, possession of the premises
illegally continued by the Government was soughtto be reverted back to the Trust and not the
trustees. For filing such petition, it was enough ifa person having interest in the trust moved the
Court”.
Although in that case, the eviction was sought from the
alleged illegal possession, the petition on behalf of the
trust held maintainable even by a person who is having
interest. A contention was raised that in such cases
objection ought to have been filed by the trust, by joining
all the trustees to the petition, which was repelled. In my
opinion, when in the present case, there was an
instrument of trust in the form of a scheme framed by the
Assistant Charity Commissioner, the duty was cast upon
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the secretary to carry out the resolution of the trust and
there was a resolution of the trustees to take the action in
respect of the properties of the trust, suit would not fail
merely because all the trustees are not made party
plaintiffs. As such, the judgments of the Courts below are
not correct on this aspect. Such incorrect view can not be
allowed to stand and defeat the suit of a trust.
15. On perusal of the judgments of the Courts below,
it would be seen that they have not addressed the other
issues in detail. Even the defendants had not led any
evidence. In this view of the matter, though the judgments
of the Courts below do not seem to be correct, the decree
as prayed by the petitioner/ plaintiff can not be passed.
Only thing that can be done is to quash and set aside the
judgments of the courts below and remand the matter to
the Court of Civil Judge, Junior Division, Morshi, for fresh
disposal, according to law, by allowing the parties to lead
the evidence afresh, if they desire, and after hearing the
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parties.
16. In sequel, the petition is partly allowed. The
judgments of courts below are hereby quashed and set
aside. The matter is remitted back to the Court of Civil
Judge, Junior Division, Morshi, for fresh disposal,
according to law, after allowing the parties to lead
evidence and hearing them afresh. The learned Judge is
also directed to dispose of the suit as early as possible in
any case within a period of six months, after appearance
of the parties.
JUDGE
Rvjalit
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