Bombay High Court
Sarda Education Trust, Through Its ... vs Mukund Rambhau Pinjarkar, Prakash ... on 20 December, 2007
Equivalent citations: 2008(2)BOMCR114, 2008(2)MHLJ395
Author: R.C. Chavan
Bench: K.J. Rohee, R.C. Chavan
JUDGMENT R.C. Chavan, J.
1. This appeal by landlords is directed against judgment of the learned Single Judge of this Court allowing Writ Petition No. 2090 of 1989 and remanding the proceedings under Section 19(1)(d) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as .Tenancy Act.) for fresh adjudication at the lowest level of Tahsildar, Anjangaon.
2. The appellant Sarda Education Trust owns field Survey No. 19 of village Wadali, Tahsil : Daryapur, District : Amravati. Out of 12.20 acres of land in this survey number which was in possession of tenant Sitaram he surrendered 8.20 acres in favour of the appellant/ trust by deed of relinquishment on 17.07.1970 and retained for himself as a tenant the remaining 4 acres of the land. According to the appellant, in the year 1977-78 he inducted respondent No. 1 Mukund as a sub-tenant. Sitaram expired and respondent No. 2 Prakash is his legal representative.
3. The appellant trust which has been granted exemption under Section 129 of the Tenancy Act filed application under Section 19(1)(d) of the Tenancy Act for recovery of possession of four acres of land with respondent No. 1 Mukund on the ground that the original tenant Sitaram sublet the land and did not cultivate it personally. This application was filed on 01.10.1983. The Tahsildar held in favour of the appellant by his order dated 31.01.1986. The tenant's appeal to the Sub-Divisional Officer was rejected by an order dated 20th February, 1986. Revision to the Maharashtra Revenue Tribunal was rejected by order dated 30th September, 1988. Sub-tenant's attempt to seek review of the said order also failed, since the tribunal rejected the review application by order dated 20th July, 1989.
4. Aggrieved by orders passed against him by the tenancy authorities the sub-tenant filed aforementioned writ petition. He contended that authorities below were not justified in holding that he has become sub-tenant, because, according to him, after the relinquishment of 8.20 acres of land in favour of the appellant society the remaining land was owned by Sitaram and therefore, respondent No. 1 Mukund could not have become sub-tenant of the land owned by Sitaram. It was further contended that the application under Section 19(1)(d) of the Tenancy Act was itself untenable since it has not been filed by all the trustees in view of the provisions of Section 39 of the Tenancy Act and Section 47 of the Indian Trusts Act. Respondent No. 1, therefore, sought quashing and setting aside of the order passed by the tenancy authorities in proceedings under Section 19(1)(d) of the Tenancy Act.
5. After hearing the parties, by his judgment dated 20th February, 1996 the learned single Judge overruled the objections of the landlord trust that respondent Mukund, who was only a sub-tenant, could not have filed revision or review before the Maharashtra Revenue Tribunal. He then held that the resolution dated 25.12.1984 authorising one Shri J.M. Laddha to take out proceedings against the tenants could not validate the proceedings in the absence of other trustees being made parties to the proceedings. The learned single Judge relied on decision of Gujrat High Court in Nanalal Girdharlal and Anr. v. Gulamnabi Jamalgbhai Motorwala and Ors., reported at and concluded that the provisions of Sections 47 and 48 of the Indian Trusts Act .and in any case the principle embodied in Section 47 and 48 must apply to public, religious and charitable trusts under the Bombay Public Trusts Act. and, therefore, held that it was necessary to go into the question whether the delegation to the Secretary of the trust to initiate proceedings was legal, proper and covered by Section 47 of the Indian Trusts Act or not. He, therefore, set aside the orders impugned before him in the petition and remanded the matter back to the Tahsildar, Anjangaon to decide the application afresh in accordance with law. Aggrieved thereby, the trust has preferred this appeal.
6. We have heard learned Advocate Shri B.N. Mohta for appellant/trust, learned Advocate Shri R.R. Joharpurkar for respondent No. 1 Mukund, who is alleged to be the sub-tenant and learned Advocate Shri S.R. Deshpande for respondent No. 2-legal representative of original tenant Sitaram.
7. Learned Advocate Shri B.N. Mohta for the appellant submitted that the learned single Judge was not justified in holding that the provisions of Sections 47 and 48 of the Indian Trusts Act were applicable to the proceedings in respect of the appellant/ trust. He pointed out that Indian Trusts Act, 1882 applies to private trust as may be seen from the preamble of the Act, which reads as under : .Preamble . WHEREAS it is expedient to define and amend the law relating to private trusts and trustees;.
8. Further he submitted that Section (1) of the Indian Trusts Act relating to 'Short title, commencement and extent' specifically excludes applicability of the provisions of the act to public or private religious or charitable endowments. He submitted that the question whether the provisions of Indian Trusts Act were applicable to public charitable trusts had been considered by a Division Bench of this Court in Controller of Estate Duty v. Mangala reported at 1982 Mh.L.J. 686 where the Court had specifically ruled that Section 1 of the Trusts Act expressly excluded applicability of the Act of public or private religious or charitable endowments. The learned Advocate for the appellant submitted that the Apex Court too in Thyarammal v. Kannakaam reported at (2005)1 SCC 457 has specifically held in paragraph 15 of the judgment that the Indian Trust Act as is clear by its preamble and contents, is applicable only to private trusts and not to public trusts.
9. It is not necessary to refer to other decisions relied on by the learned Advocate for the appellant where a similar view is taken.
10. His learned adversary Shri R.R. Joharapurkar, on the other hand, submitted that though Sections 46 and 47 of the Trusts Act may not apply to a public or private religious or charitable endowments, the principles which those sections embody would apply even to the affairs of appellant trust. For this purpose he drew our attention to observations of the Supreme Court in paragraph 17 of the judgment in Sheikh Abdul Kayum v. Mulla Alibhai reported at , which reads as under:
17. It is true that Section 1 of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear : a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation .in the regular course of business. that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs.
11. Learned Advocate Shri R.R. Joharapurkar for respondent No. 1 also relied on judgment of the Full Bench of Gujarat High Court in Atmaram v. Gulamhusein reported at . The learned Advocate also drew our attention to a judgment of the learned Single Judge of this Court in Shri Cutchi Visa Oswal Derawasi Jain Pathshala v. Shri Cutchi Visha Oswal Derawasi Jain Mahajan reported at . It is not necessary to refer to the judgment at length because the question which arose in that case pertained to attempts of trustees of one trust to grab control or interfere in administration and management of another trust. In the context of the dispute between two trusts of the same community, the Court observed in paragraph 45 of the judgment that trusts speak only through resolutions.
12. In Shrikrishna Annaji Sonatake v. Ramnarayan Pannalal Lathi and Ors. reported at 1983 BCI (O) 27, on which the learned Advocate for respondent No. l Mukund placed reliance, the question was of a trustee being able to maintain an appeal against a decree obtained by a teacher of school which was closed down. In this context the Court held that general principle of law is that the office of trustee is a joint one and, therefore, all the trustees must execute the duties of their office jointly and hence, no suit in regard to trust properties is maintainable by one or some of the trustees, if the remaining trustees are not before the Court either as plaintiffs or as defendants. In respect of landlord-tenant dispute a similar view has been expressed by the Courts.
13. The learned single Judge was also alive to the fact that Sections 47 and 48 of the Indian Trusts Act may not be directly applicable to the case of a public trust governed by the Bombay Public Trusts Act and therefore, in paragraph 11 of the judgment he observed that 'in any case the principle embodied in Section 47 and 48 must apply to public, religious and charitable trusts under the Bombay Public Trusts Act '. Now, there can be no doubt that ordinarily every trustee must discharge his trust himself and should not delegate his authority to other trustees. However, the question is whether a tenant in the position of respondent No. 1 or 2 in this appeal would be able to take advantage of action not having been initiated by all the trustees together. The principle, which is enunciated for ensuring that the trust is duly discharged, cannot be allowed to be invoked in order to defeat the very interest of the trust, which one of the trustees, authorised by others, seeks to espouse. In this case, there is a resolution albeit passed after the action was initiated, but all the same, authorising one of the trustees to recover possession of the lands from the tenants. In these circumstances, the question would be whether a tenant can be allowed to set up as a defence that all the trustees had not joined in initiating action to recover lands in respect of which the trust has secured an exemption under Section 129 of the Tenancy Act and claimed being entitled to recover possession under Section 19(1)(d) of the said Act, without the tenant being able to point out that any one or more of the trustees was willing to suffer him as a tenant on such a land.
14. It would be impermissible to just go on reproducing a principle and applying it to situations which were not foreseen, in order to allow a person disentitled to property to enjoy it taking advantage of technical or tactical requirements. We are reminded of a line from Shakespeare's .Measure for Measure. to the following effect:
We must not make a scarecrow of the law, setting it up to fear the birds of prey, and let it keep one shape, till custom make it their perch and not their terror. Inflexibility in applying an inapplicable principle and keeping the scarecrow in one shape, in our view, would enable birds of prey to make law their perch. instead of causing a fear in them.
15. Clause 13 of Section 2 of the Bombay Public Trusts Act defines .Public Trust. and refers to registration under Societies Registration Act, 1860. Section 6 of the Societies Registration Act provides as to how suits by or against the societies are to be brought and lays down that such a suit can be filed in the name of President, Chairman, Member Secretary or a Trustee, as shall be determined by Rules and Regulations of the society. The appellant trust had not produced its Memorandum or Articles of Association to show as to who could have filed an action on behalf of the trust. However, the resolution passed on 25.12.1984 has been placed on record. The learned Single Judge has observed in paragraph 12 of the judgment that the resolution dated 25.12.1984 does not show that the instrument of trust provided for such delegation. Further part of Section 6 of the Societies Registration Act provides that in default of determination by rules, a suit can be filed in the name of such a person as shall be appointed by the governing body for the action. Therefore, this resolution satisfies the requirements under Section 6 of the Societies Registration Act.
16. One of the grounds taken in the writ petition in respect of this resolution was that the resolution authorising Shri J.M. Laddha was not an authority for Shri Jugalkishore Laddha who filed that application in the year 1982. This contention has to be rejected because the proceedings had been initiated by an application made by Shri Jugalkishore Motilal Laddha himself who had been authorised by subsequent resolution dated 24.12.1984.
17. At the cost of repetition let it be pointed out that the objection of the respondent to tenability of proceedings could have been entertained had any of the trustees desired to suffer the respondent as a tenant on the trust property. No such plea has been taken by the respondents. Therefore, it has to be held that all the trustees had agreed in initiation of action to recover the land in possession of the respondents and had ratified such action by a subsequent resolution when the matter was pending. At the cost of repetition we may say that allowing a tenant to raise such a plea which would only set the clock back for re-initiation of the same action after a resolution by the trust, or, should the law so require, after all the trustees join in action. This would amount to allowing a tenant to enjoy possession of the property for the sake of a principle which was not meant for protection of the tenant's interest, but for the protection of interest of the trust. We find that invocation of principles embodied in Sections 47 and 48 of the Indian Trusts Act in the present situation has achieved exactly opposite result of frustrating the interest of the trust and is, therefore, not sustainable.
18. Learned Advocates for two respondents submitted that learned Single Judge had not gone into the merits of the matter. He had not considered whether the appellant was entitled to terminate the tenancy under Section 19(1)(d) of the Tenancy Act. Therefore, according to them even if this Court comes to the conclusion that the learned single Judge was not justified in remitting the matter back to the stage of application before the Tahsildar, it would be necessary to remand the matter back to the learned single Judge for a decision on the question whether the tenancy of the respondents could be terminated under Section 19(1)(d) of the Tenancy Act. Though tossing this file again to the learned Single Judge would amount to continuing the saga of the appellant society to recover possession of its own property started 25 years ago, there is no other option, since there is no adjudication by the learned Single Judge on this aspect.
19. In view of this, we allow the appeal in the following terms:
a) Order passed by the learned single Judge allowing Writ Petition No. 2090 of 1989 is quashed and set aside.
b) It is held that the application for termination of respondent's tenancy under Section 19(1)(d) of the Tenancy Act was validly initiated by Shri J.M. Laddha on behalf of the appellant trust and that the respondents were not entitled to raise an objection to the proceedings on the ground that they had not been initiated by all the trustees together.
c) The matter is remanded back to the learned single Judge for a decision on the remaining questions raised before him in the writ petition relating to the correctness of the orders passed by the Revenue Tribunal upholding termination of tenancy of the respondents.
d) Considering that the matter pertains to property of a educational trust initiated 25 years ago, we would request the learned Single Judge to give due priority to the proceedings.