Sunday, 9 December 2018

Whether it is mandatory to join all trustees as plaintiffs in suit for seeking recovery of possession from tenant?

 After hearing both the learned Counsels I am not inclined to accept the submission of Shri Abhyankar whereas I am inclined to accept the contentions of Shri Apte as I find that the Full Bench Decision of Gujrat reported in MANU/GJ/0112/1973 : AIR1973Guj113 Atmaram Ranchhodbhai v. Gulam Moyeddin,(supra) is directly on the point and arises under the Rent Act. It has been held by the Full Bench of Gujrat that unless instrument of trust otherwise provides all co-trustees must join for filing a suit to recover the 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 section 47 and 48 of the Indian Trust Act which are reproduced above, the contention raised by Shri Apte is correct. Section 47 clearly deprives the trustee 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 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, 1860 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 Trust Act reads as follows :-

"Public Trust means an express or constructive trust for either public religious or charitable purpose or both and includes a temple, a Math, Wakf, Church, Synagogue, aviary or other place of public religious worship a dharmada or any other religious or charitable endorsement and the Society either for religious or charitable purpose or for both and registered under the Societies Registration 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, 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.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2434 and 2773 of 1982

Decided On: 04.03.1993

Nagar Wachan Mandir, Pandharpur  Vs. Akbaralli Abdulhusen and Sons.

Hon'ble Judges/Coram:
B.N. Naik, J.

Citation:1994(1) MHLJ 280.
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Whether civil suit will be barred if tenancy agreement is not registered?

 This Court, in the matter of Raj Prasanna Kondur v. Arif Taher Khan and Ors., reported in MANU/MH/1264/2004 : 2005 (4) Bom.C.R. 383, has held that the right of a landlord under Section 24 to get a person evicted from the premises on expiry of license is not curtailed in any manner on account of absence of the agreement being in writing or registered, as contemplated by Section 55 of the Act.

Section 55 of the Act nowhere provides for "any other consequence" for failure on the part of the landlord to get the agreement drawn in writing or getting the same registered, except those provided in Sub-section (3) of Section 55. In other words, on account of failure of the landlord to get the agreement registered, he cannot be precluded or prohibited from presenting a plaint in Civil Court seeking recovery of rent. The consequence of failure to record the agreement in writing and to get it registered, would put the tenant in an advantageous position at trial, as his contention as regards the terms and conditions of tenancy will have to be accepted, unless proved otherwise. Section 55 of the Act nowhere puts an embargo in respect of entertain ability of any civil action by the landlord either for recovery of rent or for recovery of possession of the tenanted premises on account of his failure to secure an agreement of tenancy in the form, as contemplated by Section 55(1) of the Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 7 of 2011

Decided On: 19.04.2011

Shashikant  Vs.  Nirmala

Hon'ble Judges/Coram:
R.M. Borde, J.

Citation:2011(5) MHLJ 251:2011(3) ALLMR 832
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Whether lease agreement will become void if it is not registered?

 The learned Counsel then submits that the agreement is required to be compulsorily registered by virtue of provisions of Section 55 of the Act. He contends that since the agreement is not registered the tenancy is void. The argument has no force. If the tenancy is created after coming into force of the Act, it will require registration. The Section does not say that tenancy shall become void. Non registration may at the most invite penalty and lease cannot become void.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 4027, 4028 and 4029 of 2008

Decided On: 17.07.2009

 Janabai Govindrao Korche  Vs. Women's Education Society and Ors.

Hon'ble Judges/Coram:
C.L. Pangarkar, J.
Citation: 2009(5) ALLMR 926
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Whether incorrect interpretation of leave and licence agreement is binding on licensor?

Mr. Seervai then relied upon Section 55 of the Maharashtra Rent Control Act, 1999, which reads as under:

55. Tenancy agreement to be compulsorily registered.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force, any agreement for leave and licence or letting of any premises, entered into between the landlord and the tenant or the licensee, as the case may be, after the commencement of this Act, shall be in writing and shall be registered under the Registration Act, 1908 (XVI of 1908).

(2) The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let out to him, shall prevail, unless proved otherwise.
 Secondly, and more important, is the fact that the reliance upon Section 55(2) in the facts of the present case, is entirely misconceived. Under Section 55(2) if the agreement is not registered "the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let out to him, shall prevail, unless proved otherwise". The term "contention" in Section 55(2) refers to contentions of fact and not of law. Construction of the terms and conditions of a contract are questions of law. A court cannot be bound by an erroneous construction of the contract.
19. In this case, there is no dispute between the parties as to the terms of the agreements. It is not the company's case that any terms other than those contained in the said leave and licence agreement were agreed upon between the parties. In other words, the submission was not based on the existence of an independent term. The first contention raised by Mr. Seervai was based on the construction of admitted terms. I have held this construction to be erroneous. There is nothing in Section 55 which remotely suggests that even an incorrect interpretation of an agreed/admitted term is binding on the licensor.

IN THE HIGH COURT OF BOMBAY

C.P. No. 898 of 2008

Decided On: 12.02.2009

 Corporate Management Council of India P. Ltd. Vs.  Lonza India P. Ltd.
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