Whether it is necessary to issue notice to tenant prior to grant of exemption to trust property from provisions of rent law?

It is a settled position of law that no category of tenants can claim to possess any vested right to be protected by the rent laws. In Mohinder Kumar v. State of Haryana, MANU/SC/0037/1985 : [1986]1SCR74 the Supreme Court observed:

"The argument that the tenants have acquired a vested right under the Act prior to the amendment is without substance. The right claimed is right to be governed by the Act prior to its amendment. If the legislature had thought it fit to repeal the entire Act, could the tenant have claimed any such right. Obviously, they could not have I the question of acquiring any vested rights really does not arise".

7. To the same effect are the observations of Fazal Ali, J., in Kewal Singh v. Lajwanti, MANU/SC/0491/1979 : [1980]1SCR854 :

"...Thus any right that the tenant possessed after the expiry of the lease was conferred on him only by virtue of the Rent Control Act. It is, therefore, manifest that if the legislature considered in its wisdom to confer certain rights or facilities on the tenants, it could due to changed circumstances curtail, modify, alter or even take away such rights or the procedure enacted for the purpose of eviction and leave the tenants to seek their remedy under the common law."

8. In the present case the Notification dated 10th August 1982 was issued under the provisions of Section 4(2)(ii) and (iii) of the Act thereby exempting the trust properties from the operation of the provisions of the Act. There was no question of taking away any vested right as the Act could not be regarded as having created any vested right in the tenants to remain in occupation of the property. The Rent Act constitutes a kind of remedial legislation which gives additional protection to the tenants but could not be regarded as creating any vested right in them. 

11. In view of the forgoing discussion we hold that no notice is required to be given to the tenant before granting an exemption under the provisions of Section 4 of the Act as it does not contemplate grant of prior hearing to the tenants of the trust property.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3545 of 1992

Decided On: 01.07.2004

Vijaya Irappa Kattimni Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.P. Shah, Acg. C.J. and S.U. Kamdar, J.

Citation: 2005(1) MHLJ 194

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Whether suit for recovery of trust property from tenant filed by some of trustees is maintainable?

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 and Ors.

Hon'ble Judges/Coram:

B.N. Naik, J.

Citation:1994(1) MHLJ 280,1994(2) BOM CR251

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When Civil court has jurisdiction to entertain suit in respect of Trust property?

In the instant case, as indicated above, the Suit has inter alia been
filed for cancellation of the Sale Deed dated 2/7/2012 executed in favour of
the Defendant No.7 by the Defendant Nos. 2 to 6.  In pursuit of the said reliefs,
the Plaintiffs have made averments in the plaint as to how a fraud has been
practiced upon them by the Defendant No.7 by getting the Sale Deed executed
in his sole name when there was a Memorandum of Understanding entered
into between the Trustees and the Plaintiffs and the Defendant No.7 in respect
of the suit property. No doubt the Sale Deed has been executed after the
sanction order was granted by the Charity Commissioner, however, what is
required to be borne in mind is the fact that after the Sale Deed is executed,
the property no more remains the property of the Trust, and in fact has become
the property of the Defendant No.7.  Since the Plaintiffs have a grievance in
respect of the Sale Deed which has been executed solely in favour of the
Defendant No.7, the Plaintiffs in seeking the relief of cancellation of the Sale
Deed can be said to be agitating their civil rights.  Though the Sale Deed is
executed   pursuant   to   the   order   passed  under   Section   36   of   the   said   Act,
however the fact of execution of the Sale Deed,  has over taken the order of the
Charity Commissioner granting sanction  under Section  36 of the said Act.
Hence there is no merit in the contention of the learned counsel appearing on
behalf of the Applicant that the Plaintiffs in challenging the Sale Deed are in

fact challenging the order passed by the Joint Charity Commissioner under
Section 36 of the said Act. Considering the reliefs which are sought in the
Plaint, it may be that some of the reliefs cannot be granted by the Civil Court,
however, as rightly held by the Trial Court in the impugned order, the Suit is
maintainable before it in respect of some of the reliefs. Hence pre­requisites for
attracting the bar under Section 80 of the said Act are non­existent. It is
required to be noted that the challenge to the Sale Deed inter­alia on the
ground of fraud cannot be raised before the Charity Commissioner and the
same can only be raised by way of a Civil Suit. The Trial Court therefore can be
said to have correctly held that the Suit in respect of some of the reliefs was
maintainable before it.  Hence though some of reliefs cannot be granted by the
Civil Court in view of the bar under Section 80 of the said Act, at the same
time the Authorities under the said Act, cannot grant the relief by way of
prayer clause (a) and the said prayer can only be granted by a Civil Court. The
Trial Court has also taken into consideration the fact that for setting aside the
order passed under Section 36 of the said Act, the Plaintiffs have filed an
application under Section 36(2) of the said Act as the same obviously cannot
be challenged by way of a Suit.   As regards the contention of the learned
counsel for the Applicant that the Trial Court has erroneously proceeded on the
basis of the maintainability of the Suit whereas the question was about its
jurisdiction. In my view,  in some cases the issue of maintainability of Suit and
the issue of jurisdiction of Court eclipse each other, one such case can be said

to be the present one. Therefore, the order passed by the Trial Court ruling that
it has jurisdiction is well founded. It cannot be said that the Trial Court has
acted with material irregularity or in excess of its jurisdiction whilst holding
that it has jurisdiction to try and entertain the Suit.  In that view of the matter,
no case for exercise of the revisionary jurisdiction is made out.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.785 OF 2013
Pratap Shivaji Chumbale 
Versus
 Deepak Vishanath Pingale,

CORAM      : R. M. SAVANT, J.

Pronounced on : 13th December 2013
Citation; 2015 (7) ALLMR349

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When relief of specific performance of contract can not be granted relating to trust property?

Section 11 of the Specific Relief Act, 1963 is as follows:-

"11. Cases in which specific performance of contracts connected with trusts enforceable.-

(1) Except as otherwise provided in this Act, specific performance of a contract may, in the discretion of the court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust. (2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced."

Under sub-section (2) of Section 11 of the Specific Relief Act, 1963, a contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced. In the instant case, the original defendant No. 1 was one of the trustees. When the agreement for sale being Exhibit 'A' dated August 13, 1988 was entered into the two trustees appointed by the deed of trust dated November 26, 1983 being Exhibit 'D' were alive. The two trustees are the original defendant No. 1 and original defendant No. 2. The agreement for sale dated August 13, 1988 being Exhibit 'A' was entered into by the original defendant No. 1 only.

It is to be seen whether the original defendant No. 1 entered into the agreement for sale dated August 13, 1988 in excess of her power or in breach of the trust. Exhibit 'D', the deed of trust, allows the trustees to exercise few powers and authorities. Relevant to the context of the present suit the term of Exhibit 'D' is set out as follows:-

"AND IT IS HEREBY AGREED AND DECLARED that the Trustees or Trustee for the time being of these presents shall have and exercise the following power and authorities viz.

..................................................................................

c) To sell the said house and premises or any portion thereof upon such terms and conditions as they think best but so that they money so to be raised shall be immediately invested in safe securities preferably in landed properties and the money so to be raised or the investments thereof shall be subject to the same trusts objects and purposes as may affect the said house and premises so sold."

In my view, the words "trustees or trustee for the time being"

used in the deed of trust being Exhibit 'D' means the number of trustees at the point of time when the power or the authority granted by the deed of trust is sought to be exercised. Exhibit 'D' does not specifically permit any trustee to act singularly when there are more than one trustee in any other place therein. In such circumstances I read the relevant clause in Exhibit 'D' to mean that, the trustees or trustee at a material point of time seeking to exercise any power or authority granted by Exhibit 'D' must act jointly if there are more than one and obviously singularly if there is only one trustee at such point of time. In the instant case, as noted above, there were two trustees appointed by Exhibit 'D'. In such circumstances, I find that the original defendant No. 1 entered into Exhibit 'A' both in breach of the terms and conditions of Exhibit 'D' as well as in excess of the power granted to her by Exhibit 'D'. On such a finding arrived at, I am afraid, the parties are guided by Section 11 of the Specific Relief Act, 1963 and the agreement for sale being Exhibit 'A' cannot be specifically enforced.

Calcutta High Court

Sachchidananda Banerjee vs Moly Gupta & Ors on 2 December, 2014

Author: Debangsu Basak

                   Citation; AIR 2015(NOC)552 Cal

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