Sunday, 24 November 2019

What are exceptions to rule that all trustees must join to file suit on behalf of trust?

This Court, following the law laid down by the Hon'ble Apex Court in the case of J.P. Srivastava and Sons (P) Ltd. and others vs. Gwalior Sugar Co. Ltd. and others, reported in MANU/SC/0927/2004 : (2005) 1 SCC 172 held that, although, as a general rule, trustees must act together and execute duties of their office jointly, there have been certain exceptions to this general rule against delegation. This Court enumerated the exceptions to the general rule thus:

i) where the trust-deed allows the trust to be executed by one or more or by a majority of trustees;

ii) where there is express sanction or approval of the act by the co-trustees;

iii) where the delegation of power is necessary;

iv) where the beneficiaries competent to contract consent to the delegation;

v) where the delegation to a co-trustee is in the regular course of the business;

vi) where the co-trustee merely gives effect to a decision taken by the trustees jointly.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 180 of 1995

Decided On: 18.11.2013

 Namdeo  Vs.  Shahi Gupta Masjid Chandrapur

Hon'ble Judges/Coram:
S.B. Shukre, J.





1. This appeal is preferred against the judgment and order dated 6th January, 1995 and decree drawn up accordingly in Regular Civil Appeal No. 33 of 1994 by Joint District Judge, Chandrapur, reversing the judgment and decree rendered in Regular Civil Suit No. 279 of 1990 by Joint Civil Judge (Junior Division), Chandrapur on 3rd January, 1994. The appellant is original defendant and respondents are original plaintiffs. The respondents had filed Regular Civil Suit No. 279 of 1990 against the defendant. It was filed for removal of encroachment, recovery of possession and grant of permanent injunction against the appellant. The suit was filed on behalf of Trust by its then secretary, Abdul Subhan s/o. Ramjan Bax Siddhiqui and one trustee Kazi Abdul Hafiz Abdul Munaf. During the pendency of the present appeal, Abdul Subhan s/o. Ramjan Bax Siddhiqui, was substituted by the President of the said Trust Shafi Mohd. Abdul Kazi and name of respondent No. 2/original plaintiff No. 2 came to be deleted from the array of the respondents.

2. For the sake of convenience, the appellant and respondents are hereinafter referred to as defendant and plaintiff-trust.

3. It was the contention of the plaintiff-trust that it was a registered public trust and owner of 1,16,325 square feet of area of Plot No. 21/1 in Block No. 44, Sheet No. 22 of Nazul Mohalla Bhanapeth, Chandrapur hereinafter referred to as "suit-land" for convenience. The plaintiff-trust submitted that in the year 1981, defendant had encroached upon 765 square feet area out of the said plot and constructed a house thereon, which was shown in red colour and by letters A, B, C, D annexed to the plaint. Since there was an encroachment made by the defendant on the said portion of the land belonging to plaintiff-trust, the plaintiff-trust issued a notice on 21.6.1988 by registered post to the defendant calling upon him to remove the encroachment. The defendant, as alleged by the plaintiff-trust, did not pay heed and, therefore, the plaintiff-trust filed a suit against the defendant for removal of encroachment, possession and permanent injunction restraining him from encroaching upon the land belonging to the plaintiff-trust. The suit was filed, as said earlier, by secretary and one trustee on behalf of the plaintiff-trust, who claimed that they had interest in the said trust and it was their duty to safeguard the interest of the public trust.

4. The defendant resisted the suit by filing his written statement. He denied that Plot No. 21/1 in Block No. 44 (suit land) belonged to the plaintiff-trust. He asserted that it was a nazul land owned by the Government. He even claimed that he had encroached upon this Government land and his encroachment was regularized later on, as he was paying municipal taxes and also electricity charges. He further submitted that the secretary and the trustees of the plaintiff-Trust were not authorized to file any suit on behalf of the Trust. He submitted that he had spent nearly about Rs. 10,000/- for constructing the house on a portion of the suit land and that his house was situated at a distance of 1000 feet from the Masjid. On these grounds he urged that suit be dismissed with costs.

5. Trial Court found that the plaintiff-trust could not prove its ownership in respect of the suit land and also could not prove that the defendant had encroached upon a portion of the suit land to the extent of 765.59 square feet of area in the year 1981 and therefore dismissed the suit of the plaintiff-trust with costs by its judgment and decree dated 3rd January, 1994. While dismissing the suit, trial Court also recorded a finding that the encroachment made by the defendant over the portion of the suit land was regularized and accepted by the Municipal Council and Nazul Department. In the appeal bearing Regular Civil Appeal No. 33 of 1994 filed by plaintiff-trust against the said judgment and decree, the first appellate Court reversed these findings of the trial Court and found that the plaintiff-trust had proved that suit land was owned by it and that defendant had encroached upon it to the extent of area of 765 square feet and accordingly by its judgment and order passed on 6th January, 1995, allowed the appeal and decreed the suit directing the defendant to remove the encroachment and handover possession of the encroached area to the plaintiff-trust. It also granted permanent injunction restraining the defendant from making any encroachment on the suit land.

6. This Court admitted the present appeal by order dated 24th August, 1995, on the following substantial questions of law:

i) Whether the Exhibit-30 (Maintenance Khasra) for the year 1985-86 and the copy of judgment passed by the State Government Exhibit-40, are the documents of title; and whether the revenue record is document of title ?

ii) Whether the suit filed by the few trustees by not making the other trustees as parties, is maintainable?

7. I have heard Mr. P.N. Deopujari, learned counsel for the appellant/original defendant. Nobody appeared on behalf of the respondents/plaintiff-trust, although sufficient opportunity was granted. With the help of learned counsel for the appellant, I have carefully gone through the memo of appeal, impugned judgments, orders and decrees and also record of the Courts below.

8. The plaintiff-trust had filed the suit for removal of encroachment, possession and grant of permanent injunction against the defendant, claiming that it was the owner of the suit land and that the defendant had made an encroachment over the portion of the suit land to the extent of 765 square feet of area. Naturally, it was expected from the plaintiff-trust to prove its ownership over the suit land. The basis of its ownership was not pleaded in the plaint and it was not necessary also. But, when the defendant denied the ownership and claimed that the suit land was a Government land, it fell upon the plaintiff-trust to prove its ownership over the suit land. During the pendency of the suit, the plaintiff-trust produced some documents and claimed that they conferred title to the suit land upon the plaintiff-trust. Out of these documents, two documents, Maintenance Khasra for the year 1986-87 vide Exhibit-30 and decision of the State Government rendered on 27th January, 1981 in Revision Application No. LEN/5176-22839-CR-455-G-3 vide Exhibit-40, are of utmost importance to the plaintiff-trust considering nature of it's case. It is an admitted fact, as borne out from the records of Courts below, that apart from these two documents and one old Nazul Khasra of Block No. 29, Bhanapeth, Chandrapur for the year 1911-1912 a reference to which has been made in the order of Government of Maharashtra vide Exhibit-40, no other document showing supposed ownership of the plaintiff-trust in respect of the suit land has been filed on record by the plaintiff-trust. It is also an admitted position that the plaintiff-trust has not filed on record, any order of the Government of Maharashtra making allotment of the suit land in favour of the plaintiff-trust in a specific manner, thereby setting out the terms of the allotment, the area of the land allotted to the plaintiff-trust and number of years for which the allotment would remain valid.

9. Therefore, it would have to be seen as to whether, in the absence of any allotment order of Government of Maharashtra allotting the suit land to plaintiff-trust, the documents, Exhibit-30 and Exhibit-40, could be read as equivalent to allotment order conferring title upon plaintiff-trust or not.

10. Exhibit-30 is a Maintenance Khasra for the year 1986-87. From the endorsement made at the foot of it, one can see that the entries therein except, those in remarks column, have been copied from those in Maintenance Khasra for the year 1963-64. In the remarks column, there is an endorsement made in the year 1985-86 to the effect that Nazul land has been mutated in the name of "Shahi Gupt Masjid, Chandrapur" as per order dated 27.1.1981 passed in Revision Application No. LEN/5176-22839-CR-455-G-3. This order is available on record and it is at Exhibit-40. This mutation entry has been taken in the said Maintenance Khasra in pursuance of order of Tahsildar passed on 7.2.1986. Copy of order passed by the Tahsildar on 7.2.1986 has not been produced in evidence by the plaintiff-trust and, therefore, it is not known as to what order was exactly passed by the Tahsildar and whether it was passed after issuing notices to all the affected persons or not, as admittedly on that day, there were some persons, including the present appellant-defendant, who were occupying some portions of the suit-land. In any case, the entry made in the remarks column is self-explanatory and clearly indicates that it has been recorded on the basis of order at Exhibit-40. So, Maintenance Khasra vide Exhibit-30 taken by itself cannot be considered to be a document of title at all. It only records a mutation entry and such an entry made in the revenue record, in view of settled law, does not constitute a document of title. Mutation entries do not convey or extinguish any title. At the most, they can be held to be relevant only for the purpose of collection of land revenue. This is what Hon'ble Supreme Court has held in the case of Balwant Singh and another vs. Daulat Singh (dead) by L.Rs. reported in MANU/SC/0736/1997 : AIR 1997 SC 2719, referred to me by learned counsel for appellant.

11. The document vide Exhibit-40 is a copy of decision given by the Government of Maharashtra in Revision Application No. LEN/5176-22839-CR-455-G-3. It appears that the proceedings in this regard were initiated after the Nazul Surveyor submitted his report upon a complaint made to him by one Nawaji and others on 29.7.1972 that Muslims and the trustees of the Mosque have encroached upon the Government land Plot No. 21/1 and 21/4, Sheet No. 22, Block No. 44 of Chandrapur by constructing an Idgah wall on these lands. The report of the Nazul Surveyor had supported the allegations made in the plaint and, therefore, the Naib Tahsildar, Chandrapur registered a case against one Peermohamad Sk. Hussain, Musalman. In these proceedings, Naib Tahsildar, after enquiry, passed an order dated 26.10.1972 that said person had encroached upon the Government land and, therefore, he imposed a fine of Rs. 15/- on the said person. Said Peermohamad preferred an appeal before the Sub-Divisional Officer, Chandrapur, who by order dated 16.7.1973, confirmed the order of the Naib Tahsildar. Second Appeal was preferred against the order of the Sub-Divisional Officer, Chandrapur before the Collector, Chandrapur, who also confirmed the orders of the Sub-Divisional Officer, Chandrapur and Naib Tahsildar, Chandrapur. Against these concurrent orders, said Peermohamad Sk. Hussain preferred revision application before the Government of Maharashtra, which came to be decided by order dated 27th January, 1981. This order at Exhibit-40, is required to be examined from the stand-point of case of plaintiff-trust that it passes a title and also from the view point of defendant that it does not convey any title.

12. The order at Exhibit-40 shows that only issue involved in the proceedings carried in Revision Application before the Government was whether or not the Idgah wall constructed by members of Muslim community on CTS No. 21/1, Sheet No. 22, Block No. 44, Chandrapur was an encroachment on Government land. The issue thus was confined to an Idgah wall and no more. It did not envelope the larger issue-whether the suit-land having an area of 1,16,325 square feet CTS No. 21/1, Chandrapur was allotted to the plaintiff-trust and whether it was the owner thereof ? It is only this issue, which has been answered and so any decision on this issue would not confer any title upon the plaintiff-trust.

13. The order vide Exhibit-40 can be examined from the angle what reasons does it give, so as to find out, if it could be used to pass on the title to the suit-land or not. While deciding the issue of encroachment by means of Idgah wall in favour of revision applicant, Government of Maharashtra relied upon some entries in old Nazul Khasra of Block No. 29, Bhanapeth, Chandrapur for the year 2011-12 (Exhibit-36). The order stated that at Sr. No. 11 there was an entry of a Well belonging to Muslim community, that at Sr. No. 12 there was an entry of Masjid of Muslim community, and that at Sr. No. 13 there was an entry of Kabra sthan (Muslim). It further stated that at Sr. No. 14, there was an entry that it was a Nazul piece of land owned by the Government, however, in the remarks column, it was mentioned that in this piece of land, old Kabra sthan of Muslims was situated. On the basis of these entries and the spot inspections carried out by Sub-Divisional Officer and Resident Deputy Collector, Chandrapur, revealing that there were old and new graves on the suit land, Government of Maharashtra concluded that it was clear that whole area was being utilized by the "Muslim community only" as their grave yard. The order also mentioned that it was a 'common place knowledge, particularly amongst Muslims, to offer prayers in congregation, particular to the muslim community'. On such a reasoning, Government of Maharashtra further found that the muslims used to offer prayers at this spot of Kabra sthan meant exclusively for them. Such reasoning is based upon some revenue entries and conjectures. The order vide Exhibit-40 founded on such a reasoning cannot be taken as a decision to convey a title or allot of land. Then, it is also interesting to take a note of what the decision finally declares.

14. The operative part of the order makes such a declaration as to show that it has not nothing to do with any allotment of land or passing of title to plaintiff-trust. It also nowhere refers to the plaintiff-trust. It declares that the Idgah wall is not an encroachment made on the Government land by Muslim community of Chandrapur. The operative part of the order, to set all doubts at rest, is reproduced thus:

The revision application is allowed. The order of the learned Resident Deputy Collector, Chandrapur dated 5.3.1976 is set aside. It is declared that the construction of Idgah wall on CTS No. 21/1, Sheet No. 22, Block No. 44 of Chandrapur by muslim community of Chandrapur is not an encroachment on Government land.
15. It would be clear from the above referred order that the declaration is about whether or not Idgah wall is an encroachment and who has made it. It nowhere refers to plaintiff-trust in any manner nor does it declare the plaintiff-trust to be the owner of the suit land.

16. So, this document at Exhibit-40, examined from all angles does not offer any assistance to the case of the plaintiff-trust. It does not declare in so many words that the plaintiff-trust is the owner of the suit land. It also does not declare that the construction of Idgah wall existing on the suit land was made by plaintiff-trust. It only says that it has been made by the Muslim community of Chandrapur and is not an encroachment upon the Government land. Such a document cannot be interpreted as conveying any title to the suit-land to the plaintiff-trust.

17. Even otherwise, both the aforestated documents i.e. Maintenance Khasra vide Exhibit-30 and Government order vide Exhibit-40 are the documents relating respectively to revenue entries and revenue record, which are maintained primarily for the purpose of collection of land revenue and not for keeping any evidence or record of ownership and title to lands and, therefore, they cannot elevated to the status of the documents of title. At the most, they can be used for determining possession of the plaintiff-trust over the suit land. It is of course a different matter that both these documents at Exhibit-30 and Exhibit-40, even do not show possession of plaintiff-trust over the suit-land, which is evident from the reasoning of order at Exhibit-40 and it's operative part. The document at Exibit-30 is founded upon the order at Exhibit-40. So, both these documents do not show possession of plaintiff-trust as well. Be that as it may, fact remains that as a matter of principle of law the limited purpose for which revenue record can be put to use is of ascertaining possession, and that too only as long as no contrary evidence is brought on record, in view of presumptive value attached to it under Section 157 of the Maharashtra Land Revenue Code, 1966.

18. In the case of Gurunath Manohar Pavaskar and others vs. Nagesh Siddappa Navalgund and others, reported in MANU/SC/8191/2007 : (2007) 13 SCC 565, the Hon'ble Apex Court has held that a revenue record is not a document of title and it merely raises a presumption in regard to possession. The observations of the Hon'ble Apex Court in paragraph 12 are relevant in this regard and are reproduced thus:

A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act. The courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.
19. This law has been reiterated by the Hon'ble Apex Court in its latest judgment rendered in the case of, State of Andhra Pradesh and others vs. Star Bone Mill and Fertiliser Company, reported in MANU/SC/0190/2013 : (2013) 9 SCC 319, when it held that a revenue record is not a document of title and that it merely raises a presumption in regard to possession (paragraph 21).

20. Thus, it is clear that there was no scope for the first appellate Court to place any reliance upon both the documents vide Exhibits-30 and 40, for determining title of the plaintiff-trust to the suit land.

21. Having examined the question as regards nature of the documents at Exhibit-30 and Exhibit-40 from every possible angle, I am of the view that they are not at all the documents of title and they do not confer any title to the suit-land on the plaintiff-trust. They cannot be construed by any stretch of imagination as constituting documents of title. As already stated, revenue record, in view of the settled law, is not a document of title. Question No. 1 is accordingly answered as in the negative.

22. This brings me to the next question as to whether the suit filed by some of the trustees and not by all the trustees for recovery of possession is maintainable or not. In this case, admittedly not all the trustees were joined as parties to the suit. It was filed on behalf of the Trust by its secretary and one of the trustees. It was a suit for removal of encroachment and recovery of possession. The defendant had taken an objection that the secretary and one trustee were not authorized to file the suit. It was, therefore, incumbent upon the secretary and the trustee of the plaintiff-trust to show their authority to bring a suit on behalf of Trust. Of course, the trial Court ought to have framed an issue in this regard, but it was not framed. The objection, however, was about tenability of the suit and it went to the root of the matter. Therefore, eventhough no issue was framed in this behalf by the trial Court and even no point was framed by the first appellate Court, the defendant was at liberty to agitate this issue even at the stage of second appeal and he has done it in this case. It would, therefore, be necessary for this Court to consider this objection of the defendant in the light of the law governing the field.

23. Mr. P.N. Deopujari, learned counsel for the appellant has referred to me the case of Kamruddin Masjit Trust by its Mutawali Trustee Shaikh Bashir Ismail vs. Abdul Rahiman Fakiruddin, reported in MANU/MH/0349/1986 : 1986 (2) Bom.C.R. 121, wherein learned Single Judge of this Court has held that a suit filed by one of the trustees for possession of the suit property without joining other co-trustees is not competent. This Court has held that since all the co-trustees constitute in the eyes of law as one collective trustee, one of the trustees cannot sue for possession unless and except where the instrument of Trust expressly so authorizes and provides. The relevant observations of this Court as appearing in paragraph 4 are re-produced thus:

Firstly, the plaintiff suing for possession of trust property was admittedly only one of the trustees, while in law all the trustees must join in such action. All co-trustees must in general, act in concurrence and jointly. It is a joint office that they hold. They constitute in the eyes of law but one collective trustee. One or some only of the trustees cannot sue for possession unless and except where the instrument of trust expressly so authorises and provides, which is not so here. Alone and by himself, therefore, the plaintiff was not entitled to sue the defendant for possession
24. In the case of Shyamabai wd/o. Surajkaran Joshi and others vs. Madan Mohan Mandir Sanstha, a public Trust by Trustee Bhaiji Kanji Ganatra in Second Appeal No. 116 of 1998 decided on 22nd October, 2013, this Court had an occasion to deal with the same question of law. In this case, the suit for ejectment and possession was filed on behalf of the Trust by one of its trustees, on the basis of resolution of the Trust authorizing the said trustee and one more trustee to file the suit against the appellant therein. This Court, following the law laid down by the Hon'ble Apex Court in the case of J.P. Srivastava and Sons (P) Ltd. and others vs. Gwalior Sugar Co. Ltd. and others, reported in MANU/SC/0927/2004 : (2005) 1 SCC 172 held that, although, as a general rule, trustees must act together and execute duties of their office jointly, there have been certain exceptions to this general rule against delegation. This Court enumerated the exceptions to the general rule thus:

i) where the trust-deed allows the trust to be executed by one or more or by a majority of trustees;

ii) where there is express sanction or approval of the act by the co-trustees;

iii) where the delegation of power is necessary;

iv) where the beneficiaries competent to contract consent to the delegation;

v) where the delegation to a co-trustee is in the regular course of the business;

vi) where the co-trustee merely gives effect to a decision taken by the trustees jointly.

25. This being the law laid down by Hon'ble Supreme Court in the case of J.P. Srivastava (supra) and which governs the field, we have to see whether there has been any express authorization or sanction given by all the co-trustees to the secretary and the trustee to file a suit for possession. No such express sanction or authorization has been brought on record in the instant case by the plaintiff-trust. The plaintiff-trust has also not shown by adducing necessary evidence that its trust-deed allows such delegation of duty or that delegation was necessary in the facts and circumstances of the case or that beneficiaries competent to contract had given consent for filing of suit on behalf of plaintiff-trust or that delegation was in a regular course of business or that action of filing of the suit was only ministerial in nature as decision to file a suit against the defendant was already taken by all the co-trustees jointly. Therefore, I find that the suit as filed by the secretary and one of the trustees of the plaintiff-trust against the defendant, having been not covered by any of these exceptions, was not tenable at law and on this ground alone, should have been dismissed by the first appellate Court.

26. For these reasons, I find that the suit filed by few of the trustees in the instant case, without joining all the co-trustees as parties, was not maintainable. Second substantial question of law is, therefore, answered as in the negative.

27. In the result, the appeal succeeds and it deserves to be allowed with costs.

28. Accordingly, the appeal is allowed with costs. The judgment and order dated 6th January, 1995, in Regular Civil Appeal No. 33 of 1994, passed by Joint District Judge, Chandrapur and decree drawn up therein are hereby quashed and set aside, and judgment and order dated 3rd January, 1994 in Regular Civil Suit No. 279 of 1990, passed by the Joint Civil Judge (Junior Division), Chandrapur and decree drawn up therein dismissing the suit of the plaintiff-trust with costs are hereby confirmed.


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