Whether assistant charity commissioner is the court for the purpose of the contempt of Courts Act?

The scheme of the Act, the powers conferred on the Assistant Charity Commissioner and the perusal of the aforesaid provisions of the Act clearly show that the Assistant Charity Commissioner has to be a judicial officer or an officer with a legal background; has to hear parties wherever dispute is raised with regard to existence of a public trust or with regard to a property being trust property or otherwise and then give a definitive judgment after taking evidence having regard to the facts of the case and by application of law. The judgment is final unless interfered with in appeal or thereafter tested in appeal before the High Court. The jurisdiction of the Civil Court has been barred in the matters inquired into and decided by the Assistant Charity Commissioner. {Para 16}

17. The aforesaid provisions make it clear that the Assistant Charity Commissioner has not only the trapping of a judicial tribunal but also has power to give a decision or a definitive judgment which as finality and authoritativeness which are essential tests of a judicial pronouncement. The Assistant Charity Commissioner, therefore, possesses all the attributes of a court. The fact that the Assistant Charity Commissioner has also to perform some administrative functions is not of any relevance for coming to the conclusion that he is not a court, having regard to the provisions of the Act which substantially confer on him the power to give a definite judgment subject to finality in appeal, after hearing all concerned. Functions of the Assistant Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers which an ordinary Civil Court has including power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted.

18. For the foregoing reasons, we hold that the Assistant Charity Commissioner is a Court for the purposes of Sections 2 and 3 of the Contempt of Courts Act, 1971.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1534 of 1995

Decided On: 04.03.2003

 K. Shamrao and Ors. Vs. Assistant Charity Commissioner

Hon'ble Judges/Coram:

Y.K. Sabharwal and H.K. Sema, JJ.

Author: Y.K. Sabharwal, J.

Citation: MANU/SC/0175/2003,(2003) 3 SCC 563

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What is the scope of the suit filed U/S 92 of CPC?

  A suit Under Section 92. Civil Procedure Code is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions pre fulfilled that the suit has got to be brought in conformity with the provision of Section 92, Civil Procedure Code As was observed by the Privy Council in Abdul Rahil v. Md. Barkat Ali. MANU/PR/0084/1927 : 55 Ind, App. 96, Procedure Code a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92 Code of Civil Procedure. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the Defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The Defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the Plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit Under Section 92 of the Code of Civil Procedure became wanting and the Plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the Plaintiffs. It has been argued by the learned Counsel for the Respondents that even if the Plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties -- a fact which the Defendant denied. In these circumstances, there was nothing wrong for the court to give the Plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed Under Section 92 of the Code of Civil Procedure the only reliefs which the Plaintiff can claim and the court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the Defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the Section if the Plaintiff is held entitled to it; but when the case of the Plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92 of the Code of Civil Procedure. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. {Para 10}

33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit Under Section 92 Code of Civil Procedure:

(i) The Plaintiff can only seek reliefs that fall under any of the clauses in Section 92 Code of Civil Procedure. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in Section 92 Code of Civil Procedure and is outside the scope of the provision;

(ii) Merely because the Defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted;

(iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the Plaintiff is entitled to the relief sought Under Section 92 Code of Civil Procedure; and

(iv) If the Plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit.

On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit Under Section 92 Code of Civil Procedure was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, Under Section 92 of the Code of Civil Procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

Read full Judgment here: Click here

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Supreme Court: Factors to be considered by the court for grant of leave to institute suit U/S 92 of CPC against the public trust

The statement of law so laid down was reiterated:

A) In Bishwanath and Anr. v. Shri Thakur Radhaballabhji and Ors. MANU/SC/0263/1967 : (1967) 2 SCR 618

It is settled law that to invoke Section 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. ... ...

B) In Sugra Bibi v. Hazi Kummu Mia MANU/SC/0239/1968 : (1969) 3 SCR 83

It is evident that this Section has no application unless three conditions are fulfilled: (1) the suit must relate to a public charitable or religious trust, (2) the suit must be founded on an allegation of breach of trust or the direction of the Court is required for administration of the trust, and (3) the reliefs claimed are those which are mentioned in the section.

13. Three conditions are therefore, required to be satisfied in order to invoke Section 92 of the Code and to maintain an action under said Section, namely, that

(i) the Trust in question is created for public purposes of a charitable or religious nature;

(ii) there is a breach of trust or a direction of Court is necessary in the administration of such a Trust; and

(iii) the relief claimed is one or other of the reliefs as enumerated in said Section.

Consequently, if any of these three conditions is not satisfied, the matter would be outside the scope of said Section 92.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1917 of 2020 

Decided On: 03.03.2020

 Ashok Kumar Gupta Vs  Sitalaxmi Sahuwala Medical Trust and Ors.

Hon'ble Judges/Coram:

U.U. Lalit and Vineet Saran, JJ.

Citation: MANU/SC/0259/2020,(2020) 4 SCC 321

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Supreme Court: Distinction between Public trust and Private trust

While the phrase "public charity" has not been specifically defined under the Act, some guidance as to its interpretation can be derived from a Constitution Bench decision of this Court in Mahant Ram Saroop Dasji v. S.P. Sahi, MANU/SC/0175/1959 : AIR 1959 SC 951, wherein the Court, while determining whether the Bihar Hindu Religious Trusts Act (1 of 1951) applied to both public trusts as well as private trusts, observed as follows:

6. ... [I]t is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private. To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the uncertain and fluctuating body of persons is a Section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4676 of 2010

Decided On: 03.09.2019

 M.J. Thulasiraman Vs.  The Commissioner, Hindu Religious & Charitable Endowment Administration and Ors.

Hon'ble Judges/Coram:

N.V. Ramana, Mohan M. Shantanagoudar and Ajay Rastogi, JJ.

Citation:  (2019) 8 SCC 689.

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Whether suit filed by the trust is maintainable if co-trustees are not joined as a party to suit?

The law is well settled that all co-trustees must be joined in filing suit unless the instrument of the Trust otherwise provides. No one single co-trustee even if he be as a managing trustee, unanimously chosen by the co-trustees, can maintain such a suit without other trustees being parties to it. If any one or more are unwilling to be joined the suit as plaintiff or for some reason or the other it is not possible to join them as plaintiff, they must be impleaded as defendants so that all the co-trustees could be before the Court.

The general principle of law is that the office of a trustee, irrespective of the number of trustees, is a joint one and co-trustees form, as it were, one trustee and must therefore execute the duties of their office jointly. Hence no suit in regard to trust properties would be maintainable by one or some of the trustees only, if the remaining trustees are not before the Court either as plaintiffs or even as defendants."

45. As held above, the trust properties vest on all trustees. Body of the Trust comprises of all the trustees of the Trust. It is, therefore, apparent that first of all, all the trustees have to decide whether or not suit is to be filed on behalf of the Trust. It has to be a joint or at least decision by majority. It cannot be disputed that the decision of the Trust must be reflected in the resolution passed in a meeting of the Managing Committee of the Trust. It is only through such resolution the Trust can speak or disclose its mind that it has decided to file suit and authorised one of its trustees to sign and verify the plaint to appoint or engage leader to represent the interest of the trust. In the instant case, it is nowhere mentioned in body of the plaint that the suit is being filed in pursuance of any such resolution passed by the Managing Committee of the appellant-Trust. Nowhere it is mentioned that Mr. V.K. Korani was authorised by all the trustees to represent interest of the Trust and that he is entitled to sign and verify the plaint on behalf of the trust. Thus, prima facie; suit has been filed without there being any authority in favour of Mr. Korani from the appellant-Pathshala Trust. The suit, thus, suffers from this additional substantial defect.

IN THE HIGH COURT OF BOMBAY

Appeal from Order No. 641 of 2004

Decided On: 13.08.2004

Decided On: 14.09.2004

Shri Cutchi Visa Oswal Derawasi Jain Pathshala Vs. Cutchi Visha Oswal Derawasi Jain Mahajan 

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) ALLMR484

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Whether the appellate court should interfere with the decision of the trial court on the question of balance of hardship under rent law?

It is well settled that an Appeal Court will be ordinarily slow to interfere with the decision of the trial Judge on questions like the balance of hardship, for this is primarily a question of fact. To succeed, the appellant must how that the trial Judge misdirected himself on a question of law or that he based his judgment on some finding of fact on which there was no evidence. If in drawing up the statutory balance sheet of hardship under Section 13(2), there is some evidence of hardship on each side the decision of the trial Judge must be normally final. The appellate Court can interfere in certain circumstance, for instance, if there is no evidence of hardship on one side or if the trial Judge has held to be relevant some matter which in law is not relevant such as the absence of a view of a neighbouring hill, river, tree or something pleasant of that kind.

IN THE HIGH COURT OF BOMBAY

Special Civil Appln. Nos. 2185, 2187 and 2194 of 1969

Decided On: 14.03.1972

 Kishinchand Murjimal Vs. Bal Kalavati 

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Whether construction of marriage hall or charitable hospital would amount to putting premises to non-residential use?

Mr.Chitale, the learned counsel for the respondents sought to support the decree passed by the Appellate Court by arguing firstly that the requirement of the trustees for constructing marriage hall, clinic and hospital etc. is not requirement for residential purposes and hence, any decree that would be passed on that ground evicting the tenant would be contrary to Section 25(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which prohibits conversion of residential purpose to non-residential purpose. The trial Court has rightly negatived this contention on the ground that the requirement, cannot be considered to be for non-residential purpose because a large portion of the construction will be used by the doctors, nurses and patients who would be residing therein although for different times and sometime temporarily and the present use of the building itself if not wholly for residential purposes.

19. Moreover, the word "residence" must be understood in the context of the Act as used in Section 6. The words "residential use" as opposed to "non-residential use" must, therefore, be used not for education, business trade or storage within the meaning of S. 5 (1). It cannot be said that the construction of a marriage hall or a charitable hospital by a charitable trust would be putting the premises to use for education business, trade or storage within the meaning of Section 6.

20. "Residence" has no doubt, a variety of meanings according to the Statute or document in which it is used. It is an "ambiguous word" and may receive a different meaning according to the position in which it is found. The word may receive a larger or more restricted meaning according to what the Court believes the intention of the Legislature to have been, in framing the particular provision in which the word occurs. Having regard to these various meanings of the word 'residence' and the scheme of the Rent Act as indicated in the Section 6, it must be held that the legislature in used the words "non-residential purpose" in Section 25 did not intend to prohibit use of a building like the suit building containing a residential flat like the suit flat and the land on which such a building stands for purposes of construction of Marriage Halls. Charitable Hospital and quarters and garages for Doctors and Nurses as in the present case. The said Marriage Halls, Hospitals etc. are like to be used for sleeping, eating, drinking etc. temporarily if not permanently from day-day particularly in a crowded city like Bombay. The use of the same cannot be described, the facts and circumstances established in the case, as "non-residential" use within the meaning of even Section 25.

IN THE HIGH COURT OF BOMBAY

Special Civil Appln. Nos. 2185, 2187 and 2194 of 1969

Decided On: 14.03.1972

 Kishinchand Murjimal Vs. Bal Kalavati and Ors.

Hon'ble Judges/Coram:

M.S. Vaidya, J.

Citation: 1972 MHLJ 822, AIR 1973 Bom 46

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Bombay HC: Trust is not required to file resolution for filing eviction suit if all trustees have filed suit

As held above, the trust properties vest on all trustees. Body of the Trust comprises of all the trustees of the Trust. It is, therefore, apparent that first of all, all the trustees have to decide whether or not suit is to be filed on behalf of the Trust. It has to be a joint or at least decision by majority. It cannot be disputed that the decision of the Trust must be reflected in the resolution passed in a meeting of the managing committee of the Trust. It is only through such resolution the trust can speak or disclose its mind that it has decided to file suit and authorised one of its trustees to sign and verify the plaint, to appoint or engage pleader to represent the interest of the Trust. In the instant case, it is nowhere mentioned in body of the plaint that the suit is being filed in pursuance of any such resolution passed by the managing committee of the appellant - Trust. Nowhere it is mentioned that Mr. V.K. Korani was authorised by all the trustees to represent interest of the Trust and that he is entitled to sign and verify the plaint on behalf of the Trust. Thus, prima facie, suit has been filed without there being any authority in favour of Mr. Korani from the appellant-Pathshala Trust. The suit, thus, suffers from this additional substantial defect.

From the facts of the said case, it is clear that only one of the trustees had filed the suit and neither there was any pleading nor there was any evidence that the trustees had passed a resolution to, file a suit against the defendant and that the said trustee, who had filed the suit was authorised by all of the trustees to represent the Trust. If one or some of the trustees only filed the suit or such an application, this authority would be applicable, but where all the trustees have joined as the applicants in the application, that itself indicates that all the trustees had agreed and resolved to file the application for eviction. Therefore, it was not necessary to plead and prove that such a resolution was passed. In fact there was no question of authorisation of any particular trustee to file such an application because the application was filed by all the trustees jointly.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application Nos. 1254, 1255 and 1256 of 2001

Decided On: 13.03.2008

 Minoo Rustomji Shroff Vs. Dali Kavasji Gai and Ors.

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2008(4) MHLJ 71,2008(3) BCR 16

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Whether it is mandatory for charity commissioner to hear public trust prior to grant of consent for filing suit against trust?

 Apart from the mandate of the provisions of Section 51 of the Act of 1950 and the proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951, the elementary principle of audi alteram partem also casts an obligation on the Authority under the Act of 1950 to hear the party against whom civil action is proposed. If the submission made on behalf of respondent Nos. 1 and 2, that notice to the proposed defendant and opportunity of hearing to the proposed defendant is not contemplated by the provisions of Section 51 of the Act of 1950 and proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951 is accepted, it would amount to misreading the provisions and causing infraction of right of the affected party guaranteed by principles of natural justice.

8. In the facts of the case, I find that the consent granted by the Assistant Charity Commissioner under Section 51 of the Act of 1950 to respondent Nos. 1 and 2 to file civil suit against the petitioner-Society, without giving notice and without granting hearing to the petitioner-Society, is illegal and unsustainable in law.

9. Learned Advocate for respondent Nos. 1 and 2 submitted that after grant of consent, civil suit is filed and the petitioner-Society has submitted to the jurisdiction of the civil Court and participated in the proceedings and at this stage, hearing on application for temporary injunction is going on. In my view, the filing of civil suit will not legalize the illegality committed by the Assistant Charity Commissioner while granting sanction for filing of the civil suit. The civil suit filed against petitioner-Society could not have been filed without sanction by the Assistant Charity Commissioner. Thus, legal sanction for filing the civil suit is sine qua non and if the foundation i.e. sanction itself goes, the civil suit also has to go.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1269/2019

Decided On: 03.07.2019

 Shri Shivaji Shikshan Sanstha Vs.  Rajiv and Ors.

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2020(1) MHLJ 345

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Basic principles for determining whether an activity or transaction is for a commercial purpose

To summarize from the above discussion, though a straight-jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is 'for a commercial purpose':

(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, 'commercial purpose' is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.

(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of 'generating livelihood by means of self-employment' need not be looked into.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 12322 of 2016

Decided On: 14.11.2019

 Lilavati Kirtilal Mehta Medical Trust  Vs.  Unique Shanti Developers and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and Ajay Rastogi, JJ.

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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.

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Whether decision of civil court regarding title over suit property will prevail over decision of assistant charity commissioner?

Now the question arises what is the effect of finding given by Assistant Charity Commissioner in Inquiry No. 151/1997 dated 13.01.2006, holding that the suit property is the property of plaintiff Trust (Exh. 190). The questions arise whether after the decision of Assistant Charity Commissioner regarding nature of the suit property as Trust property, whether defendants can prove their title over the suit property or whether the plaintiff Trust will be held as title holder of the suit property.

12. The Full Bench of this Court had occasion to consider the effect of decision given by Charity Commissioner under inquiry under Section 19 (ii) read with Section 22A of the Trust Act in the case of "Keki Pestonji Jamadar and anr. Vs. Kohodadad Merwan Irani and others" reported in (MANU/MH/0125/1973 : 1972 Mh.L.J. 427). While considering the procedure prescribed by the Trust Act for the conduct of inquiry under Section 19, the Full Bench observed that,

"The procedure prescribed by the Act for the conduct of inquiries under Section 19 is wholly unsuited to a proper and effective adjudication of disputed titles to the trust property. Under Section 19 the Deputy or Assistant Charity Commissioner has to conduct an inquiry "in the prescribed manner". Rule 7 which deals with the manner of inquiries provides that the procedure prescribed for the trial of the suits under the Presidency Small Cause Courts Act, 1882 or the Provincial Small Cause Courts Act, 1887, as the case may be, would apply to the proceedings under Section 19. Under Section 19 (d) (e), (f) and (g) of the Presidency Small Cause Courts Act, 1882 and under Item 4 of the Second Schedule of the Provincial Small Cause Courts to decide questions of title to immovable property is expressly excluded and the procedure devised for trials under those Acts is consequently far too summary for a proper adjudication of such titles. The provision in Rule 7 that a party to an inquiry can appear through an agent and the power of the Tribunal to exclude lawyers from the inquiries reveal to some extent the narrow nature of the inquiry envisaged by Section 19.

Rule 11 provides that the officer holding the inquiry may only make a memorandum of the substance of what each witness deposes. It is unthinkable that questions of title could be permitted to be decided by a Tribunal finally and conclusively without any obligation to record the evidence fully. It is matter of common experience that subtle shades of evidence are often missed in a memorandum containing merely the substance of the evidence".

13. Full Bench of this Court considered Section 26 of the Trust Act under which any Court of competent jurisdiction deciding any question relating to any public trust, which by or under the provisions of Act it is not expressly or impliedly barred from deciding, has to send copy of such decision to the Charity Commissioner and Charity Commissioner has to cause entries in the register to be made or amended in accordance with such decision. This Court held that if a Civil Court upholds the title of third party to the property, which under Section 19 has been found to belong to the trust, the record of the Charity Commissioner has to be amended so as to accord with that decision. The decision of Civil Court will have priority over the decision recorded in the inquiry under Section 19 of the Trust Act. While explaining the above-said judgment of the Full Bench, the Division Bench of this Court, in the case of "Samastha Lad Vanjari Samaj, Ram Mandir Trust Vs. Waman Kisan Sanap and others" reported in (MANU/MH/0274/1975 : 1976 Mh.L.J. 806), has explained that the true owner is not affected by an inquiry under Section 19 of the Act because the question which has to be decided by the Authorities is a different question operating at different level. The decision of the Authority and decision of the Civil Court operates at different levels and different areas so that there is no conflict between the two.

14. Thus, in view of this legal position though the Assistant Charity Commissioner held that the suit property is the property of Trust, when adverse title is set up in the suit property by the defendants, by inheritance, as legal heirs of Kasturmal Agrawal, the original title holder, the decision of Civil Court regarding title over the suit property will prevail over the decision of Assistant Charity Commissioner. In accordance with the decision of Civil Court, necessary changes in the entries in public trust register will have to be made by Charity Commissioner under Section 26 of the Trust Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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Whether presumption U/S 90 of Evidence Act is applicable to document like will?

On the point no. 3, regarding status of the suit property, as to whether it is trust property or not, arguments were vehemently submitted by Shri Vijay Dixit, Senior Counsel for the appellants, mainly on the ground that the plaintiff trust filed certified copy of the will, dated 13.7.1936, executed by Kasturmal Dalsukh Agrawal. Under this will, plaintiff trust was created and suit property was bequeathed in favour of the plaintiff trust. This will is registered on 19.10.1036. According to the learned Senior counsel for the appellant, learned Trial Court erroneously admitted this will and exhibited it invoking presumption under Section 90 of the Evidence Act. He submits that the will is a special document and it can be proved at least by examining one attesting witness to prove the compliance of Section 63 (c) of the Indian Succession Act, 1925 r/w Section 68 of the Evidence Act. He placed reliance on "Bharpur Singh and others vs. Shamsher Singh" [MANU/SC/8404/2008 : 2009 (3) SCC 687], wherein the Apex Court held that presumption regarding documents 30 years old is not applicable to will. The will must be proved in terms of Section 63 (c) of the Indian Succession Act, 1925. On the point of proof of will, he placed reliance on following authorities.

1] P. Laxman v/s. Thekkayil Padmini and others [2009 (3) Mh.L.J. 510]

2] Keshav Narayan Bharti vs. The State of Maharashtra and others [MANU/MH/1368/2006 : 2006 (3) BCJ 550]

3] M.B. Ramesh (D) by L.Rs. Vs. K.M. Veeraje Urs (D) by Lrs and Ors. [MANU/SC/0462/2013 : 2013 DGLS (SC) 375]

4] Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Ors. [MANU/SC/0530/1976 : (1977) 1 SCC 369]

5] Sridevi & others vs. Jayaraja Shetty & ors. [MANU/SC/0065/2005 : (2005) 2 SCC 784]

6] Niranjan Umerschandra Joshi vs. Mrudula Jyotirao & ors. [MANU/SC/8788/2006 : (2006) 13 SCC 433]

7] B. Venkatamuni vs. C.J. Ayodhya Ram Singh and Ors. [MANU/SC/4692/2006 : (2006) 13 SCC 449]

8] Anil Kak vs. Kumari Sharada Raje & Ors. [MANU/SC/7520/2008 : (2008) 7 SCC 695]

In reply, learned counsel for respondent nos. 1 and 2, though fairly submitted that presumption under Section 90 of the Evidence Act is not applicable to the document like will.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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Whether provisions of limitation Act is applicable to suit filed as per S 50 of Bombay public trust Act?

Learned counsel for the appellants submits that as per pleadings of plaintiffs, especially para 12, the cause of action to file this suit arose when plaintiffs filed Inquiry No. 151 of 1997 and after the death of Shri Laxminarayan Ramvilas Agrawal. Thus, the suit for declaration of title as well as for possession, filed on 29.10.2004 is barred by limitation. He submits that limitation for filing such suit for declaration is 3 years from the date of cause of action under Article 58 of the Limitation Act, and for possession, the limitation is 12 years under Article 65 of the Limitation Act. As such, suit is not within limitation. Learned counsel for the appellants placed reliance on "Keshav Narayan Bharti through L.Rs. And others vs. State of Maharashtra and others" [MANU/MH/1368/2006 : 2006 (3) BCJ. 550].

Learned counsel for respondent nos. 1 and 2 submits that this suit is filed under Section 50 of the Maharashtra Public Trust Act after obtaining required permission from the Charity Commissioner under Section 51 of the Trust Act. This being special forum under Local Act, the general provisions of the Limitation Act, 1963 are not applicable. He has drawn my attention to the judgment in the case of "Shri Dev Chavata of Tambulwadi vs. Ganesh Mahadeo Deshpande" [MANU/MH/0070/1970 : 1970 Mh.L.J. 736].

In the case at hand, admittedly plaintiff trust filed suit under Section 50 of the Trust Act after obtaining necessary permission from the Charity Commissioner under Section 51 of the Act. Thus, obviously, this is special forum under Local Act i.e. Maharashtra Public Trust Act.

This Court, in the same matter reported in "Seth Kasturmal Dalsukh Dharmashala Dhule and others vs. Shantidevi w/o Laxminarayan Agrawal and others" [MANU/MH/1616/2012 : 2013 (1) Mh.L.J. 695] held that the suit is not the one invoking general civil jurisdiction of the Court within the meaning of Section 9 of the Civil Procedure Code, but is filed before the District Court i.e. Court as contemplated under Section 2(4) r/w Section 50 of the Bombay Public Trust Act. This Court also held that under Section 50 (iv) of the B.P.T. Act a suit can be filed in the Court even for relief of declaration and injunction in favour or against a public trust. Section 50 also explicitly provides that a suit for possession can be filed in the Court. Sub-Clause (q) of Section 50 (iv) further empowers the Court to grant any other relief which would be a condition precedent or consequential to any of the relief provided in Section 50. For claiming relief of possession, a decision on question of ownership would be relevant. Unless the plaintiff proves his ownership or any other status as regards the property of which possession is sought, he would not be entitled for relief of possession. As such, relief of declaration as to the status of plaintiff qua the property would be condition precedent for grant of relief of possession.

This Court also held that the B.P.T. Act is special Local Act. Suit under Section 50 is a special remedy before special forum under the Act. The bar, as envisaged under Sections 79 and 80 of the B.P.T. Act, would not be attracted in view of the provisions of Sections 50 and 51 of the Trust Act.

So also, in Shri Dev Chavata of Tambulwadi vs. Ganesh Mahadeo Deshpande (supra), this Court observed that:

"5. In my judgment, there is nothing in the Bombay Public Trusts Act, 1950, which is a special local Act, which makes the provisions of the Indian Limitation Act, 1908, or of the Limitation Act of 1963 applicable to a suit under Section 50 of the Bombay Public Trusts Act The suit under Section 50 is a Special remedy before a special forum under the Act. The present suit haying been filed on July 21, 1955, the question which will have to be considered is as to whether the Indian Limitation Act, 1908, will apply to it Section 75 of the Bombay Public Trusts Act applies certain provisions of the Indian limitation Act only to the filing of appeals and applications. The Indian Limitation Act, which is the general law of the land relating to limitation, is applicable in the circumstances mentioned in Section 29 of that Act in the case of suits and proceedings under Special or Local Law. Now, Section 29(2) comes into operation when a Special or Local Law prescribes for any suit a period of limitation. See Vidyacharan Shukla v. Khubchand Baghel. And Shankar v. Chunilal. However, there is nothing in Section 50 or in any other provision of the Bombay Public Trusts Act. 1950, which prescribes any period of limitation for a suit under Section 50. The suit is to be instituted outside Greater Bombay before a special forum, viz., the District Court, as provided in the section read with Section 3(4). I am, therefore, of the opinion that the Limitation Act is not at all attracted to any suit under Section 50 of the Bombay Public Trusts Act. Section 52-A lays down that suit against even an assignee for valuable consideration is not barred by any length of time and hence It is clear that legislature could not have intended to apply the law of limitation to suits under Section 50. The learned District Judge was, therefore, wrong in applying presume ably Art 142 and in dismissing the suit."

Thus, this suit being filed under Section 50 of the Trust Act, which is special forum, the provisions of Limitation Act, 1963 are not applicable to this suit as under Section 50 of the Trust Act, no limitation is provided for filing such suit for declaration regarding trust property and for possession of the trust property. Therefore, I hold that the suit claim is well within limitation. The Trial Court has rightly held that the suit is not barred by limitation.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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How to decide issue of comparative hardship in eviction suit against tenant?

 To say that the Trustees of the petitioners are also members of the Jamaat and that Jamaat had several other properties, is certainly an irrelevant consideration. As long as, there is no material produced on record, this Trust itself owns any suitable property from where it could start the school, the issue of comparative hardship certainly cannot be decided in favour of the respondents. Besides, in the present case, considering the number of business activities which the respondents carry out through various premises located in Mahabaleshwar itself, the issue of comparative hardship will have to be decided against the respondents. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1997 of 1995, Civil Application Nos. 2274 and 1351 of 2017

Decided On: 21.12.2018

Ranjanwadi Shikshan Trust Vs.  Govind N. Naidu and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2019(4) MHLJ 38,2019(1) RCR 552

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Whether every suit relating to public trust should be filed U/S 92 of CPC?

 It is argued by the learned counsel for the respondents that
if the appellants wanted any relief against the respondents complaining
of a breach of trust, their remedy should have been a suit under
Section 92 of the Code. In answer to this contention, learned counsel
replied that the appellants do not seek any of the reliefs enumerated in
Section 92(1) (a) to (h) of the Code. Settled legal position is that any
and every suit relating to a public trust need not be under Section 92 of
the Code, unless the reliefs claimed therein do fall within the matters
enumerated in Section 92(1) of the Code.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR. JUSTICE A.HARIPRASAD
&
MRS. JUSTICE SHIRCY V.

RFA.No. 360 of 2018

P.E. THOMAS EACEY, Vs MR.ABRAHAM JOSE ROCKY,

Dated this the 21st day of June, 2019

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When it is not necessary to issue notice to municipal corporation prior to filing of suit against it ?

As per provisions of Section 487 of the said Act a protection is granted with regard to any act done or purported to be done in pursuance or in execution or intended execution of the said Act. In that regard unless a notice is given by the plaintiff with duration of one month and a suit filed within six months of the accrual of the cause of action, such suit cannot be instituted. Having found that the plaintiff Trust was entitled for exemption under Section 132(1)(b) of the said Act it was clear that the Trust was not liable to be assessed for payment of tax. If that be the situation then issuance of the demand notice on 04/01/2011 cannot be said to be an act done in pursuance of or in execution of the provisions of the said Act. In other words there being an exemption from payment of taxes under Section 132(1)(b) of the said Act, there would be no cause to demand such taxes by issuing any demand notice. Moreover, the said demand notice has been held to be illegal. It is thus clear that the demand notice was issued despite the fact that the plaintiff was exempted from payment of taxes. In such situation it will have to be held that the suit was not liable to be dismissed for failure to issue notice under Section 487 of the said Act as present case such notice was not required to be issued.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 645 of 2017

Decided On: 05.07.2018

Gorakshan Sanstha  Vs. Akola Municipal Corporation

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(1) MHLJ 776

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Whether appeal is maintainable against order passed by charity commissioner in intervention application?

 Section 73-A enables person to file application for impleadment as a party to any proceedings under the Act. The said person has to. prove his locus and interest in the public trust and then he can be joined as a party to such proceedings, in which he has moved the application. Thus, the section 73-A vests similar power as available to a Court under Order 1, Rule 10 of the Civil Procedure Code. The proceedings of application under section 73-A thus, does not merge in parent proceedings under section 22 of the Act.

 Thus, I answer the issue in para 4 accordingly. The order dated 14-12-2015 passed by the Deputy Charity Commissioner in the Intervention application under section 73-A of the Act which was filed in the proceedings under section 22 of the Act is not appealable under section 70 of the Act before the Joint Charity Commissioner.

IN THE HIGH COURT OF BOMBAY

F.A. No. 1064 of 2017 and Civil Appln. No. 2961 of 2017

Decided On: 16.08.2018

Kashyap Odhavji Thakkar Vs. Chandrakant R. Ganatra and Ors.

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: 2019(1) MHLJ 102

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What is difference between ordinary trustee and hereditary trustee?

In the case of hereditary trustee, the office devolves on the trustee according to the rule of succession laid down by the founder or according to usage or custom applicable to the institution or trust. The phrase `trustee' is defined in section 2(18) of the Trust Act as follows :-

" 2(18) "trustee" means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager;"

This makes no distinction between an `ordinary trustee' and a `hereditary trustee'. No trustee can be said to be owner of the property in the real sense of the term. The legal ownership which vests in the trustees is for the purpose of the trust or for beneficial enjoyment by others and for administration of the provisions of the trust. Thus, it is clear that the property of trust vests in the trustees in a limited sense and to be managed for subserving the objects of the trust. This would make the rights and obligations of `ordinary trustee' and `hereditary trustee' as same. Therefore, only difference in respect of the ordinary trustee and the hereditary trustee can be said to be in the method or mode of appointment. Even the hereditary trustee is required to be recognised by the office of the Charity Commissioner and necessary entries are required to be made in the trust register maintained under section 17 in that respect and any change of trustee to be recorded in view of section 22. Therefore, I reject the contention raised on behalf of the respondents that there is a difference between the ordinary trustee and a hereditary trustee.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 535 of 1975

Decided On: 22.02.1993

 Abaji Daulata Yadav  Vs. Dhondiram Jagedevrao Yadav and Ors.

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Whether suit filed by trust will abate if legal heirs of trustees are not brought on record?

 However, the Division Bench in Letters Patent Appeal held that "It would, therefore, appear that it is well settled that Order 22, Rule 3 of the Code applies to cases where the plaintiff leaves behind the estate which could be inherited by his heirs or successors and if they are brought on record, then the provisions of Order 22, Rule 3 will apply. However, the case would be different where the suit is brought by the plaintiff not in his personal capacity but in his representative capacity as a trustee or otherwise. In that case when he dies, his own legal representatives would not automatically become trustees and would not be legal representatives within the meaning of Clause (11) of section 2 of the Code. Only those trustees who are elected or appointed under the scheme of the trust can step in his shoes and continue the suit. Such a new trustee could not by any stretch of imagination be said to be legal representatives of the deceased trustee. In any case, the right of the deceased plaintiff to act as a trustee would not pass on to the new trustee on the death of the deceased trustee. The new trustee would get his right not by virtue of death of the previous trustee but because of his being elected or appointed as a trustee under the scheme of the trust... Now obviously such a case will not be covered by Order 22, Rule 3, which contemplated the legal representatives of the deceased plaintiff being brought on record. Since the new trustee would not be a legal representative of the deceased trustee, in that sense there is no question of the new trustee applying for being brought on record under the provisions of Order 22, Rule 3 of the Code. Obviously such a case would be covered by Rule 10 of Order 22 of the Code." It was further held that unlike Rule 3 of Order 22, no limitation is prescribed for presentation of application under Rule 10 and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant devolves and hence the right to make an application under the latter rule is right which accrues from day to day and can be made at any time during the pendency of the suit and there is no abatement under that rule. Considering the ratio of this judgment, it is clear that in the present case, the provisions of Order XXII, Rule 10 shall be attracted and, therefore, even though application was made for substitution after 9 months (though the learned Judge wrongly observed as one year and 3 months), there can be no abatement. It is not the case where the legal representatives of the deceased respondent No. 4 are to be brought on record but the trustee who is recognised by the Charity Commissioner is to be brought on record. This would happen not only in the case of death but even in the case of retirement or resignation of the trustee. In all these cases, substitution is required to be made and which can only be made under Order XXII, Rule 10. Hence, in my opinion, the learned Judge was not right in holding that the suit abated. 

IN THE HIGH COURT OF BOMBAY

First Appeal No. 535 of 1975

Decided On: 22.02.1993

 Abaji Daulata Yadav  Vs. Dhondiram Jagedevrao Yadav and Ors.

Hon'ble Judges/Coram:

P.S. Patankar, J.

Citation: 1994(3) Bom CR 60, 1993 MHLJ 588

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