Whether Revenue is entitled to attach properties of Private Trust to recover dues of trustees?

 The controversy then remaining in the

present Petition is whether the Revenue is

entitled to attach the properties belonging to a

Private Trust to recover dues of the trustees, who

was a director of a company which had allegedly

defaulted in paying its tax dues. The contention

of the Revenue appears to be that the property

being attached does not belong to the Trust but is

a property of one late Mrs. Sushila Laliwala- the

mother of the defaulting trustee. Therefore, the

properties could be attached to the extent it

devolved upon the ex-director of the defaulting

company as her legal heir.

 10. Mr. Suresh Kumar appearing on behalf of the

Revenue also fairly submits that pursuant to issuance of the

Letters of Administration by this court to the trustees of the

trust, the above position is settled in law that the subject

properties stand in the name of the trust and do not belong to

the original petitioner No.1 against whom the Revenue has

initiated recovery proceedings. He however submitted that

the recovery proceedings being civil in nature would however

continue against the original petitioner No.1 and his estate in

the hands of his legal-heirs and representatives. But in so far

subject properties are concerned, he has fairly accepted the

position that continuance of the attachment orders would now

not be sustainable in law in view of the Letters of

Administration issued to the trust.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1657 OF 1998

Rajesh T. Shah Vs  The Tax Recovery Officer

CORAM : UJJAL BHUYAN, &

MILIND N. JADHAV, JJ.

PRONOUNCED ON : 13th March 2020.

JUDGMENT (PER MILIND N. JADHAV, J.) :-

Print Page

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

Print Page

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.

Print Page

Whether suit filed by disciple with authorization of all trustee without permission of charity commissioner for enforcing civil right is maintainable?

i. Whether the suit filed by a disciple on behalf of the Trust in the court of Civil Judge, Jr. Division, for enforcement of civil rights of the trust is maintainable?

Ans. In the affirmative, as it is filed by trustee with authorization from all trustees.

 I find that this is a suit by the trust to prosecute its civil rights and in such matters, ordinarily the Civil Court will have jurisdiction and no permission of the Charity Commissioner is necessary if the suit is filed by the trustees.

5. The pleadings and findings on record disclose that though the plaint shows that it was filed by a disciple, in fact, the suit was filed by one of the trustees with authorization from all the trustees. Since the suit is filed by the trust, all the trustees are not necessary parties. All the trustees will be necessary only in a suit against the trust.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 532 of 1991

Decided On: 19.12.2018

 Daiwan  Vs.  Bankat Swami Trust and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 686

Print Page

Whether it is mandatory for all trustees to join in eviction suit against 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.

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(2) BomCR 251,1994 MHLJ 281

Print Page

Whether application for execution of decree which is not signed by trustees of charitable trust is maintainable?

 It is also argued that the execution proceedings ought to have been signed by all the trustees and that the Secretary of the trust cannot represent the trust to file execution proceedings. In support of this contention reliance is placed on Section 47 of the Indian Trusts Act, 1882.

7. So far as the question as to who should sign the execution proceedings and who should verify the execution proceedings is concerned, the provisions of Order 21, Rule 11(2) of the Code of Civil Procedure, 1908 are most relevant. The relevant provision reads as under :

"Written application-- (2) Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars."

This provision clearly means that it is not necessary that every time only the decree holder must file execution proceedings. It can be filed by any other person who happens to be acquainted with the facts of the case and the Court happens to be satisfied that the person so signing the execution proceedings is acquainted with the facts of the case. Here, the Secretary of the trust has signed the execution proceedings and it is very clear from the order passed by the learned Judge of the Court of Small Causes that he has not raised any doubt about the acquaintance of the Secretary with the facts of the case. So to the satisfaction of the Judge of the Court of Small Causes, the execution proceedings is rightly presented.

8. No doubt, Section 47 of the Indian Trusts Act, 1882 prohibits the trusts from delegating the powers, but the explanation to Section 47 of the Indian Trusts Act, 1882 reads as follows :

"The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section."

It means that ministerial acts can be performed by a person who is authorized by the trustees to do the needful. Learned Counsel for the petitioners has argued that no such authorization is filed by the Secretary before the Court to show that he can sign the execution petition on behalf of the trust. However, when the Court was satisfied that the Secretary was acquainted with the facts of the case and could file proceedings, I do not think that there is any substance in this contention. 

IN THE HIGH COURT OF BOMBAY

Civil Writ Petn. No. 2285 of 1997

Decided On: 21.06.2001

 Monalisa Rohinton Irani  Vs. Naval H. Tata and Ors.

Hon'ble Judges/Coram:

V.K. Barde, J.

Print Page

Whether court has jurisdiction to control discretion to be exercised by trustees?

The learned Judge has also overlooked the well settled law
laid down in the judgments of various Court relied upon by the
Appellant where it has been expressly held that once the
discretionary power is not exercised by the trustee reasonably and
in good faith, such power could be controlled by a Court. These
judgments have been passed in the following cases viz. Klug
(Supra) a judgement of the Chancery Division, M.V.
Ramasubbier (Supra), judgment of the Supreme Court and in
Re. H.E.H., The Nizam's Jewellery Trust (Supra), again a
judgment of the Supreme Court. The Supreme Court in Re.
H.E.H., The Nizam's Jewellery Trust (Supra) at paragraph 52
has held as under:-

52. The power conferred on the Board of
Trustees is no doubt discretionary, but on the
principle embodied in S.49 viz., that when such
discretionary power is not exercised
reasonably and in good faith, such power may
be controlled by a Court. There was no warrant
for the suggestion made by the Board of
Trustees before the High Court that the power
is absolute. The law on the subject is
succinctly stated in Underhill's Law of Trusts
and Trustees,12th Edn.,p.472;
….it would seem that, even where trustees
claim to exercise their discretion as to
investments, the court will, in a proper case,
direct an inquiry whether it is for the interest of
the beneficiaries that a particular investment
should be continued or called in. So, too,
where absolute discretion has been given to
trustees to do a particular act (e.g. to sell the
trust property), the court cannot compel them
to exercise the power, but if they do exercise
it, the court will see that they do not exercise it
improperly or unreasonably.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 551 OF 2004
IN
SUIT NO. 3578 OF 2000
Kamleshsingh Harnamsingh Chowhan Vs Gangasingh Motisingh Chowhan

CORAM: B.R. GAVAI &
RIYAZ I. CHAGLA, JJ.

Dated: 11TH JANUARY, 2019.
Citation: 2019(4) MHLJ 833

Print Page

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.

Print Page

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

Print Page

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.

Print Page

Whether successor trustee should make application for bringing him on record within limitation?

However, even if it is assumed that the present case is governed by Order 22 Rule 10 of the Code, the question still remain, whether the application made by the new trustee would be governed by any period of limitation. Even though, Shri Kherdekar appearing for the respondents before the learned single Judge had submitted that such an application would be governed by Article 181 of the Indian Limitation Act, 1908, he has very fairly conceded before us that such an application would not be governed by any period of limitation, It is not, therefore, necessary to decide this point in this appeal. However, in Baijnath Ram v. Mt. Tunkowati MANU/BH/0076/1962 : AIR1962Pat285 Full Bench of the Patna High Court held that unlike Rules 3 and 4, of O.22, no limitation is prescribed for presentation of an application under Order 22 Rule 10, and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant has devolved and hence the right to make an application under the latter rule is a right which accrues from day to day and can be made at any time during the pendency of a suit and there is no abatement under that rule. A similar view has been taken by a Single Judge of the erstwhile Nagpur High Court in C. Wright Neville v. E. H. Freser MANU/NA/0101/1943. It would, therefore, appear that once It is held that the application is governed by O. 22 Rule 10 of the Code, then such an application could be made at any time during the pendency of the suit or appeal, but while granting leave to the applicant to proceed with the suit or appeal, the Court would consider the question on merits. However, the application cannot be thrown out simply because it is not made within a particular period,

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 7 of 1971

Decided On: 24.04.1978

 Sitabai Ramchandra Jaltare  Vs.  Masjid Nurun Mohalla Jingerwadi

Print Page

Whether legal heirs of trustees are to be brought on record on death of trustee if suit was brought on behalf of trust?

 The first question which falls for consideration is whether the application which was made by Adbul Majid before the learned District Judge was governed by Rule 3 of Order 22 as held by the learned District Judge or by Rule 10 of Order 22, as held by the learned Single Judge. Relying on certain decisions referred to by him in his judgment, the learned District Judge was of the view that Order 22 Rule 10 is a residuary rule governing only those cases which are not provided for by the preceding rules and where devolution takes place by reason of death, the matter falls under Rule 4 where the death is of the defendant and Rule 10 will have no application to such a case. The learned District Judge was of the view that Rule 10 is an enabling one but not a device intended to get over the laches of the parties bound to move under Rule 3 or Rule 4. It appears that the learned District Judge was of the view that Order 22 Rule 10 will not apply to a case where the plaintiff or defendant dies and the suit has to be continued by other persons. The learned District Judge was of the view that in case of death of the plaintiff or the defendant, as the case may be. the proper provision to be applied would be Rule 3 or R. 4 of O. 22 and not Rule 10. It was in this view of the matter that the learned District Judge held that the present case was governed by Order 22 Rule 3 of the Code and not by Order 22 Rule 10. Having held so, the learned District Judge further found that the legal representative of Awaliyabi should have been brought within 90 days from her death and since this has not been done, the appeal had abated.

7. As already seen the learned Single Judge differed from the learned District Judge with regard to the application of Order 22 Rule 3 to the present case. The learned Single Judge observed that Order 22 Rule 3 would apply only if on the death of the plaintiff the suit is to be continued by the legal representatives of the plaintiff but not to the case where the plaintiff was a trustee. According to him, on the death of the plaintiff, who filed the suit in his capacity as a trustee, or his resignation or otherwise ceasing to be trustee, the person, who could continue the suit would not be his personal legal representative but another trustee of the said trust. The learned single Judge observed that Awaliyabi had not filed the suit in her personal capacity and hence there could not be any question of her personal legal representatives continuing it and it could be continued by another representative of the trust, in our opinion, the view taken by the learned single Judge, with respect, appears to be laying down the law correctly in this respect. In Thirumalai v. Arunachella MANU/TN/0398/1925 : AIR1926Mad540 , the appeal was filed by nine trustees. But during the pendency of the appeal two of them died and one retired. It appears that an application was made for bringing on record the trustees who had been appointed in place of one of them who had expired and the other who had retired. This application had been filed beyond the period of 90 days from the death of one of trustees and from the date of retirement of the other. It was contended that the new trustees, who had been appointed in place of the above said two trustees were their legal representatives within the meaning of clause (11) of S. 2 of the Code and hence the application not being filed within the prescribed time, could not be entertained. On these facts it was held that the new trustees were not legal representatives of those who had died or retired and it was held that the application for bringing the new trustees on record would fall under Order 22 Rule 10, because the interest of the deceased trustees devolved on these persons by the act of the electors done in pursuance of the scheme framed by the Court and it was a case of devolution of interest during the pendency of the suit. In Keshab Rai v. Jyoti Prosad MANU/WB/0345/1932 : AIR1932Cal783 a Division Bench of the Calcutta High Court held that Rules 2, 3 and 4 of Order 22 of the Code relate to cases of devolution in interest on the death of a plaintiff or defendant when such plaintiff or defendant was suing or was being sued respectively in his personal capacity, that these rules do not apply when a suit is brought by or against a person in his representative character and to such a suit the provisions of Order 22 Rule 10 of the Code will be applicable. Again in Kishori Lal v. The Collector ILR (1955) All 128 a Division Bench of the Allahabad High Court held that Order 22 Rule 4 of the Code is applicable to those cases where a person who is brought on the record as legal representative inherits the property from the deceased party, but where a person is brought on the record as legal representative in order to represent an estate which was formerly represented in a suit by another person, Order 22 Rule 10 of the Code will apply. Lastly in Roshan Lal v. Kapur Chand MANU/PH/0085/1960 a Division Bench of the Punjab High Court has held that where a suit is brought by trustees and some of them die during the pendency of the suit, the new trustees can be added as parties under Order 22 Rule 10 of the Code and newly appointed trustees are not representatives of the deceased trustees within the meaning of Order 22 Rule 3. 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 representative would not automatically become trustees and would not be legal representatives within the meaning of Clause (11) of S. 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 representative 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. Obviously, therefore, when a suit is filed by a person in his capacity as a trustee or representing a trust or any interest and if he dies, the suit can- not be continued by his own legal representatives but will have to be continued by another trustee or a person who is appointed or elected to manage the trust. In short, therefore, interest as a trustee will not devolve on a new trustee because of the death of the previous trustee but because of his being elected or appointed as such, Now obviously such a case will not be covered by Order 22 Rule 3, which contemplates 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, In this view of the matter, therefore, it is not possible to say that the conclusion to which the learned single Judge has arrived is not correct.

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Letters Patent Appeal No. 7 of 1971

Decided On: 24.04.1978

 Sitabai Ramchandra Jaltare  Vs.  Masjid Nurun Mohalla Jingerwadi

Hon'ble Judges/Coram:

M.D. Kambli and A.A. Ginwala, JJ.

Citation: 1978 MHLJ 789 bom

Print Page

Whether it is necessary to obtain leave for amending plaint in representative suit?

MAINTAINABILITY OF MANNATHUR CHURCH SUIT:

180. It was also submitted by Shri Mohan Parasaran, learned senior Counsel that the Mannathur Church matter suit was not maintainable. It was not of a representative character and in view of Order 1 Rule 8 Code of Civil Procedure, fresh leave was not sought when the reliefs were amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.

 It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit Under Order 1 Rule 8 Code of Civil Procedure. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3674, 3681, 3682, 3683, 8790, 8789 of 2015, 

Decided On: 03.07.2017

 K.S. Varghese and Ors. Vs. ST. Peter's and Paul's Syrian Orth. and Ors.

Print Page

Whether one trustee can validly issue quit notice to tenant?

The issue in that case was whether one co-trustee could determine a tenancy. The Court said he could not, but held: (AIR p. 116, para 8)

"But when we say that the tenancy must be determined by all co-trustees, we must make it clear that what we mean is that the decision to terminate the tenancy must be taken by all the co-trustees. The formal act of giving notice to quit pursuant to the decision taken by all the co-trustees may be performed by one co-trustee on behalf of the rest. The notice to quit given in such a case would be a notice given with the sanction and approval of all the co-trustees and would be clearly a notice given by all co-trustees."

Therefore although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly."

18. As can be seen from the aforesaid decision, the Supreme Court has clearly held that although as a rule the trustees must execute the duties and functions of their office jointly, this general principle is subject to exceptions as more particularly set out in paragraph 29. The first exception is when the Trust Deed allows the Trust to be executed by one or more or by a majority of trustees. The second exception is when there is an express sanction or approval of the act by the co-trustees.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 730 of 2014 and Civil Application No. 346 of 2014 in Civil Revision Application No. 730 of 2014

Decided On: 29.06.2017

 Life Insurance Corporation of India Vs. Digvijaysingh Gangasingh and Ors.

Hon'ble Judges/Coram:

B.P. Colabawalla, J.

Citation: 2018(1) MHLJ 259

Print Page

Whether resolution taken by general body of trust will come in to effect from date of resolution?

Now we would revert to the second aspect of the matter regarding the relief of mandatory/injunction claimed against the appellants in A.O. No. 1260 of 1995 emanating from Notice of Motion No. 4762 of 1995 in suit No. 5470 of 1995. The same is pressed essentially on the premise that Shri Marathe still continues to be the life president of the Society. This premise, in my view, is wholly inappropriate. It clearly over looks the fact that the general body of the Society in its meeting dated March 19, 1995 resolved to amend the constitution thereby deleting the provisions which ordained that Shri Marathe shall remain life President of the Society. Besides deleting the said provision, the general body also resolved to amend the constitution by providing that the post of President as well as that of the Governing Council members shall be filled by election only and the term of their office would be upto a period of three years from the date of assuming office. Besides amending the constitution which effected the change, this change has been reported to the competent authority under section 22 of the Bombay Public Trusts Act, 1950. Besides this change, another change that occurred pursuant to the general body decision dated June 18, 1995 is that Shri V.M. Pant, Senior Member was elected as a President and other members were elected to the new Governing Council, who assumed office after the said resolution. Even this change was reported to the appropriate authority as required under section 22 of the Act. The argument, however, advanced on behalf of the respondent-Shri Marathe is that the said change will come into effect only after the same is accepted by the appropriate authority. The Counsel for the respondent further contends that the amendment to the constitution is yet to be approved by the appropriate authority and till such time the question of conducting elections on the basis of such amended constitution, as has been done in the present case, is totally without authority of law. He further submits that the change report with regard to the amendment of the constitution, being change Report No. 1456/1995, was initially rejected by the Assistant Charity Commissioner by order dated June 6, 1998 which order was later on set aside by the Joint Charity Commissioner on June 13, 1998 at the instance of appellants in A.O. No. 1260/1995. He however, contends that the said decision has been interdicted by the City Civil Court in Charity Appeal Application No. 15/1998. According to him, therefore, the said change report relating to amendment of the constitution is still pending consideration and till such time no steps can be taken on the basis of the amended constitution. This submission is totally misplaced and in the teeth of the settled legal position. The law with regard to the efficacy of any change brought about and its application is no more res integra. The Apex Court in decision reported in A.I.R. 1993 S.C.W. 3006; Managing Committee, Khalsa Middle School and another v. Smt. Mohinder Kaur and another, has considered this aspect of the matter. The Apex Court was called upon to examine similar provisions of the Societies Registration Act, 1860. The scheme of section 12-A of that Act is more or less same as section 22 of the Bombay Public Trusts Act. The Apex Court compared the said provision with the provisions of sections 18 and 19 of the Companies Act which mandate that the alteration or amendment to the Memorandum of Association of the Company takes effect from the date of its registration only. In that context the Apex Court in para 11 of the said judgment has observed that in absence of any requirement in the Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression "occur" as observed in the Black's Law Dictionary is:

"To happy; to meet one's eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise."

Giving the natural meaning to this word in section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail. Understood thus, as a necessary corollary, it will have to be held that the respondent-Shri Marathe ceased to be the President of the Society from the date when the General Body elected another President in its meeting dated June 18, 1995. If this be the position, the respondent-Shri Marathe will have no right whatsoever to continue in the post of president and, there would be no question of granting any mandatory relief at this stage.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1260 of 1995 with Civil Application No. 6599 of 2000 with Appeal From Order No. 1256 of 1995

Decided On: 01.10.2001

Chembur Trombay Education Society and Ors. Vs. D.K. Marathe and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2002(3)BomCR161 

Print Page

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

Print Page

Whether husband can claim ownership over property purchased in the name of wife?

In the given case before this court when the property was purchased in the name of this plaintiff/appellant in the year 1979 there was no cloud in the marital relationship between the parties. I have already said that evidence is galore that the entire consideration money came from either the defendant personally or from his private limited companies. It is immaterial whether the defendant violated the provisions of the companies act or whether such money was reimbursed to the company. It is true that after purchasing the property the parties shifted to the suit flat and the defendant is still residing there. The marriage between the parties was dissolved on 26.09.1984 that is roughly after six years of the execution of those deeds and the suit was filed on 2nd of July, 1987 that is after a gap of 2 year 9 months of the divorce. Thus, when a fat amount (as per money value of 1978-79) was given to the wife for the purchase of the suit flat this court is satisfied that the husband had good faith on his wife and that the relationship at that point of time was 'fiduciary' one. The plaintiff/appellant was like a 'trustee' vis-a-vis her husband, if he is treated as 'trust'. The cumulative effect of the circumstances noted above, when seen in the light of the substantial amount paid by the defendant/husband that puts the plaintiff/appellant in 'fiduciary capacity' vis-a-vis her husband. Such being the case the transaction is completely saved from the mischief of Section 4 of benami prohibition Act by reason of the same falling under Sub-Section 3(b) of Section 4. Thus, I reiterate that the plea of banami as raised by the respondent/defendant was not, therefore, barred by the said Act of 1988.

IN THE HIGH COURT OF CALCUTTA

S.A. 577 of 2008

Decided On: 02.09.2016

 Debika Chakraborty

Vs.

 Pradip Chakraborty

Hon'ble Judges/Coram:

Indrajit Chatterjee, J.

Citation: AIR 2017 Calcutta 11

Print Page

Suit brought against Trustee for recovery of trust property is not be barred by any length of time.

 Section 10 of the Limitation Act would exclude the period of limitation prescribed under the Act would be applicable when a claim is brought against a person in whom property has become vested in Trust for any specific purpose or against his legal representatives or assigns. In other words, when suit is brought against a Trustee in whose favour the property of the Trust vested it would not be barred by any length of time.

50. In view of the aforestated discussion, the suit schedule property is held to be a Trust property. Under the Will dated 17.07.1945 - Ex.P-2 it has been bequeathed by the Testator by creating a Trust and it has already been noticed by this Court that said property has vested in the Trust. Thus, when the 73

property is vested in the Trust, the Trustees have a right to recover the said property if it is been transferred by such trustees by igniting the proceedings against subsequent transferees and no length of time can prevent recovery of such property.

51. In view of the finding recorded herein above that defendants-1 and 2 were the trustees of late B.Arasoji Rao charities and they were also litigating over the suit schedule property, by no stretch of imagination it can be construed or held that the suit in question filed against such trustees would be barred by limitation.

Karnataka High Court

Sri Keshava Pai Deceased By Lrs vs Sri V.Jothoji Rao on 22 August, 2013

Author: Aravind Kumar

Citation;AR 2014 (NOC)166 kar,2013(4) AKR 816

Print Page