Bombay High Court
Shri Gokulrao Sheshrao Deshmukh vs Vasant Mahadeorao Akarte (Dead on 16 January, 2009
Author: S.R.Dongaonkar
Bench: S.R.Dongaonkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2714/2008
Patil Patwari Saraya Sansthan,
Morshi, Registration No. E-59,
through its Secretary
Shri Gokulrao Sheshrao Deshmukh,
R/o Ramnagar, Morshi,
Tah. Morshi, Distt. Amravati ...PETITIONER
...versus...
Vasant Mahadeorao Akarte (Dead)
by L.Rs.
1) Smt. Kusumbai wd/o Vasant Akarte,
aged about 65 years,
2) Prashant s/o Vasant Akarte,
aged about 40 years,
3) Pravin s/o Vasant Akarte,
aged about 33 years.
Nos. 1 to 3, R/o. Near Govt. Hospital,
Morshi, Tq. Morshi, Distt. Amravati
4) Sau. Anita w/o Dilip Kale,
aged about 35 years,
R/o. Wardhamaneri, Tah. Arvi,
Distt. Wardha.
5) Sau. Yogita Awinash Wankhade,
aged about 30 years, R/o. Chandrur
Bazar, Tq. Chandur Bazar,
Distt. Amravati ..RESPONDENTS.
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Shri K.N.Dadhe, Adv. for the petitioner,
None for respondents
CORAM : S.R.DONGAONKAR, J.
DATE : 16th JANUARY, 2009
ORAL JUDGMENT
1. Heard Shri Dadhe, Advocate, for the petitioner.
None for the respondents though served, for final disposal.
Heard on merits forthwith.
2. The petitioner is a Trust bearing Registration No. E-59 of Amravati. It had brought R.C.S.No. 53/2002 before the Civil Judge, Junior Division, Morshi, for eviction, possession, arrears of rents and mesne profit against one Vasant Mahadeorao Akarte, of whom the present respondents are L.Rs. In the suit proceeding, the then defendant filed W.S. Amongst other defences, he also contended that the suit was barred by principle of ::: Downloaded on - 09/06/2013 14:15:24 ::: 3 res-judicata and the Secretary G.S.Deshmukh had no right to file the said suit for want of compliance of provisions of Indian Trust Act. The issues were framed.
The plaintiff led his evidence. It appears that the defendant did not lead any evidence though he contested the matter. The learned Civil Judge relying on the observations of Gujrat High Court in AIR 1973 Guj 113 (Atmaram Ranchhodbhai vs. Gulamhusein Gulam Mohiyaddin and other) and this court in 1994 Mh L J 280 (Nagar Wachan Mandir, Pandharpur vs. Akbaralli Abdulhusen and sons and others), found that as all trustees of the petitioner/plaintiff trust were not party plaintiffs to the suit, the same was liable to be dismissed.
He has found that instrument of trust was not filed on record. He further found that the plea was taken by the respondent/defendant that the suit was barred by res-
judicata and the plaintiff had not shown new cause of action, as such also the suit was liable to be dismissed.
::: Downloaded on - 09/06/2013 14:15:24 ::: 4Other issues were cursorily addressed by the learned Civil Judge. Consequently he dismissed the plaintiff/petitioner's suit by the judgment dated 3.9.2004.
3. Petitioner/plaintiff then preferred an appeal R.C.A. No. 220/2004 before the District Judge, Amravati.
The learned District Judge-I, Amravati, found that the suit was not properly instituted by all the trustees of the trust and therefore, he held that the suit was liable to be dismissed and therefore, he dismissed the appeal.
4. These judgments are challenged in this Writ Petition.
5. Learned counsel for the petitioner has submitted that the plaintiff's evidence coupled with the documents which he had produced, has clearly established that all the trustees of the petitioner's trust by resolution had authorized the Secretary Shri G.S.Deshmukh to institute ::: Downloaded on - 09/06/2013 14:15:24 ::: 5 the instant suit, so also the instrument of trust provides for such authorization and Secretary of the Trust can institute such a suit. Therefore, the authorities referred by the learned Civil Judge as well as learned District Judge were not applicable to the instant matter.
According to him, when the plaintiff has deposed about the authorization, and no evidence was led by the defendants otherwise to disprove such authorization, the plaintiff's suit would not fail. He has relied on the Division Bench judgment of this Court in Rashid A. Maskati and another vs. State of Maharashtra and others (1998 (2) Mh.L.J. 188). He, therefore, submitted that the courts below have taken a wrong view of the matter and dismissed the plaintiff's suit, so also the appeal. As the courts below had erred on appreciating the legal issue in proper perspective, this petition should be allowed and those judgments be quashed and set aside.
::: Downloaded on - 09/06/2013 14:15:24 ::: 66. As stated above, none appeared for the respondents though served.
7. As only legal issue is being considered, it is necessary to peruse the observations of the Gujrat High Court in AIR 1973 SC 113; Atmaram Ranchhodbhai vs. Gulamhusein Gulam Mohiyaddin and others. In para 8, it has been observed thus-
"8. It is, therefore, clear that one co-trustee cannot give notice to quit determining the tenancy. The decision to determine the tenancy by giving notice to quit must be taken by all co-trustees unless, of course, the instrument of trust otherwise provides, or the beneficiaries being competent to contract consent, or in any particular case it is established that on the peculiar facts obtaining in that case, the delegation of the power to determine the tenancy was necessary. 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-
::: Downloaded on - 09/06/2013 14:15:24 ::: 7trustees.
8. This court in Nagar Wachan Mandir, Pandharpur vs. Aklbaralli Abdulhusen and Sons and others (1994 Mh.L.J. 280 ) has observed in para 11, thus-
"After hearing both the learned counsel 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 Gujarat reported in AIR 1973 Gujarat 113, Atmaram Ranchhodbhai vs. Gulamhjusein Gulam Mohiyaddin (supra) is directly on the point and arises under the Rent Act. It has been held by the Full Bench of Gujarat 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 Sections 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 trust 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 ::: Downloaded on - 09/06/2013 14:15:24 ::: 8 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, 1980 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 Trusts 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, Agiary 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, ::: Downloaded on - 09/06/2013 14:15:24 ::: 9 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".
9. On perusal of these two judgments, it would be seen that the facts of those cases were such that the instrument of trust did not provide for filing the suit or defending the suit by one of the trustees or chairman or the secretary of such trust.
10. In this regard, therefore, it is necessary to closely note the provisions of section 47 & 48 of the Indian Trust Act, which read thus-
47. Trustee cannot delegate. - A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger unless (a) the instrument of trust so provides, or (b) the delegation is "in the regular course or business, or
(c) the delegation is necessary, or (d) the ::: Downloaded on - 09/06/2013 14:15:24 ::: 10 beneficiary, being competent to contract, consents to the delegation.
Explanation - 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.
48. Co-trustees cannot act singly. - When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides."
The provisions require that if there are more trustees than one, then all trustees must join in the execution of the trust, except where the instrument of trust otherwise provides.
11. The Societies Registration Act, 1860, Section 6 provides thus -
"6. How suits by and against societies. -
Every society registered under this Act may sue or be sued in the name of the President, Chairman, or Principal Secretary in default of such determination, in the name of such persons as shall be appointed by the governing body of the occasion:::: Downloaded on - 09/06/2013 14:15:24 ::: 11
Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant."
12. In the present case, the evidence led by the plaintiff shows that the plaintiff had produced some documents on record. One of them is Exh. 42 which is the resolution of the trustees of the petitioner Trust, which reads thus-
"Resolution No. (6) Regarding delegation of powers for Court actions in respect of property of the Trust.
It is unanimously resolved by all the trustees of the Trust that powers for Court actions, for legal proceedings and other Court formalities etc., in respect of the movable and immovable properties of the Society are delegated to Shri G.S.Deshmukh, Secretary of the Society.
Resolution is unanimously resolved. Proposer : Shri R.G.Kanfade, Seconder : Shri Punabrao Raut.
After unanimously resolving the above ::: Downloaded on - 09/06/2013 14:15:24 ::: 12 mentioned resolution and after giving vote of thanks, the President has declared the meeting to be over.
Sd/- sd/-
Member Secretary Tulsiram Sudebhanji Padole
President of the Meeting
Dt. 3.11.94"
It would be seen that all the rights in respect of movable and immovable properties for court actions, the authority was granted the Secretary Shri G.S.Deshmukh, who had deposed in favour of the plaintiff.
13. This takes me to consider the documents which are placed now on record in the petition. It appears that in Suo Muto Inquiry No. 7/91, the Assistant Charity Commissioner, Amravati Region, Amravati, by order, had framed a scheme in respect of the petitioner trust. Clause 6 of the said scheme provides thus-
(6) Holding and ownership of property by the Public Trust - Whole movable and immovable property would stand in the name of the trust. The maintenance, affairs and management of the said property would be as per the provisions of ::: Downloaded on - 09/06/2013 14:15:24 ::: 13 the scheme and the Rules framed under Public Trust Act, 1950 and the same would be within the custody of the trustees.
It further shows that the Secretary of the trust was obliged to execute the resolution of the trust as his duty.
Therefore, he was duty bound to execute the resolution of the trust referred above. It would thus be seen that in the present case there was an instrument of trust which cast a duty on the Secretary of the Trust to carry out the execution of the resolution of the trust. Once this resolution is passed by the trustees of the petitioner trust, the Secretary was duty bound to carryout the Court proceedings on behalf of the petitioner trust. In this view of the matter, therefore, the authorities referred by the Courts below at the instance of the respondents i.e. AIR 1973 Gujarat 117; Amritlal Nathubhai Shah and others vs. Union Government of India and another and 1994 Mh,L.J. 280; N.W.Mandir vs. Akbaralli, would not be applicable to the set of facts in the instant case.
::: Downloaded on - 09/06/2013 14:15:24 ::: 1414. In this regard, the view expressed by the Division Bench of this Court in 1998(2) Mh.L.J. 188; Rasheed A. Maskati and another vs. State of Maharashtra and others, is thus-
"In the writ petition, possession of the premises illegally continued by the Government was sought to be reverted back to the Trust and not the trustees. For filing such petition, it was enough if a person having interest in the trust moved the Court".
Although in that case, the eviction was sought from the alleged illegal possession, the petition on behalf of the trust held maintainable even by a person who is having interest. A contention was raised that in such cases objection ought to have been filed by the trust, by joining all the trustees to the petition, which was repelled. In my opinion, when in the present case, there was an instrument of trust in the form of a scheme framed by the Assistant Charity Commissioner, the duty was cast upon ::: Downloaded on - 09/06/2013 14:15:24 ::: 15 the secretary to carry out the resolution of the trust and there was a resolution of the trustees to take the action in respect of the properties of the trust, suit would not fail merely because all the trustees are not made party plaintiffs. As such, the judgments of the Courts below are not correct on this aspect. Such incorrect view can not be allowed to stand and defeat the suit of a trust.
15. On perusal of the judgments of the Courts below, it would be seen that they have not addressed the other issues in detail. Even the defendants had not led any evidence. In this view of the matter, though the judgments of the Courts below do not seem to be correct, the decree as prayed by the petitioner/ plaintiff can not be passed.
Only thing that can be done is to quash and set aside the judgments of the courts below and remand the matter to the Court of Civil Judge, Junior Division, Morshi, for fresh disposal, according to law, by allowing the parties to lead the evidence afresh, if they desire, and after hearing the ::: Downloaded on - 09/06/2013 14:15:24 ::: 16 parties.
16. In sequel, the petition is partly allowed. The judgments of courts below are hereby quashed and set aside. The matter is remitted back to the Court of Civil Judge, Junior Division, Morshi, for fresh disposal, according to law, after allowing the parties to lead evidence and hearing them afresh. The learned Judge is also directed to dispose of the suit as early as possible in any case within a period of six months, after appearance of the parties.
JUDGE Rvjalit ::: Downloaded on - 09/06/2013 14:15:24 :::