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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1195 of 1972.

From the Judgment and Decree dated 19.10.1971 and 5.4.1971 of the Mysore High Court in Regular First Appeal No. 57 of 1967.

S.S. javali and B.P. Singh for the Appellants. R.B. datar for the Respondents.

The Judgment of the Court was delivered by SEN, J. This appeal on certificate from the judgement and decree of the Karnataka High Court dated April 5, 1971 raises a question of general public importance. The question is whether two or more trustees of a registered public trust can, with the permission in writing of the Charity Commissioner as provided for in 8.51 of the Act, bring a suit for declaration that certain property belongs to the Public trust and for possession of the same from a person holding it adversely to the trust under s.50(ii) of the Bombay Public Trusts Act, 1950. That depends on whether the words 'persons having interest in the trust occurring in s.2(10) and s.50 of the Act to or do not include the trustees of a registered public trust. If they do not, two or more trustees cannot file a suit as contemplated by s.50(ii) of the Act. There had been a divergence of opinion in the High Court as to the precise meaning of the words 'persons having interest in the trust' in s.2(10) and s.50 of the Act and as conflicting views had been expressed by different Benches from time to time, the matter was referred to a Full Bench. The correctness of the view taken by the Full Bench is in question in this appeal.

It appears that plaintiff no. 2's uncle Mariyappa Lingappa permitted one Balalochanayya Hiremath to reside in a part of the suit premises as he happened to be a man of saintly pursuits and one without a family. Subsequently, Balalochayya left the premises occupied by him. Thereafter, plaintiff no. 2's father as the trustee employed two brothers, Ramchayya and Gurunandayya to perform services for the temple and he assigned the suit premises to them for their residence with a view that they should be allowed to occupy the premises free so long as the trustees allowed them to remain in occupation and so long as they were retained in the service of the temple. they were to remain occupation of the suit premises as licensees of the trustee of the temple. Rachayya and Gurunandayya started asserting rights derogatory to the trust. Accordingly, plaintiff No, 2's father as the trustee filed civil Suit No, 96 of 1935 in the Court of the Joint Civil Judge, Bijapur ant the learned civil Judge by his judgment dated August 8, 1936 decreed the plaintiffs' claim. The defendants went up in appeal to the Court of the District Judge in Regular Appeal No. 109 of 1936 but the appeal was dismissed on November 22, 1937. Thereafter, plaintiff no. 2's father terminated the services of Rachayya Gurunandayya yet called on them to vacate the suit premise, which they tilt. After Ramchayya and Gurunandayya were removed from service of the temple, Shantayya brother of Rachayya ant Smt. Shankarawa, also of Gurunandayya were taken in service of the temple and allowed to reside in the suit premises free of rent on condition that they were to occupy the said premises so long as their services to the temple were required. In 1957, Shantayya along with Smt. Shankarawa also started creating trouble and plaintiff No, 2's father, according terminated their services and asked them to vacate the suit premises. On their failure to do so, he brought two suits being Civil suits Nos. 244 and 255 of 1957 in the name of the idol Shree Gollaleswar Dev as plaintiff no. 1 with himself being the trustee as plaintiff no. 2. The case of the plaintiffs was that the defendants were in occupation of the said premises with leave and licence of the trustee of the temple and as they refused to deliver possession of the suit premises, the suits had been instituted for a declaration that the property belong to the temple and for possession thereof. The defendants contested the plaintiffs' claim on various grounds. They pleaded inter alia, that the temple had no right or title to the suit premises which belonged to this by virtue of a registered gift-deed dated February 19, 1917 executed by Mariyappa, uncle of plaintiff no. 2 in favour of their predecessor-in-title Balalochanayya, that there was no consent in writing given by Charity Commissioner under 8. 51 and therefore the suits brought under 8. 50(11) of the Act were not maintainable and further that the Court of the Civil Judge, Senior Division, Bijapur had jurisdiction to entertain the suits. The learned Civil Judge following the decision of the Mysore High Court in Marikamba Temple Hanumant Temple, Sirsi by its manager, S.S.. Dhakappa v. Subrava Venkataramanappa Barkur, I.L.R. 1958 Mysore 736, upheld these contentions and dismissed the suit as not maintainable.

1. Whether the expression 'persons having interested in the trust' occurring in s. 2(10) and s. 50 of the act includes trustees also .
2. Whether two or more trustees of a public trust can file suit for declaration that a property belongs to the public trust and for recovery of possession of the from a person holding it adversely to trust under s.50 (ii) of the Act.

The full Bench upon the hypothesis that s 50 of the Act is in pari materia with s. 92 of tho Code expressed that the well settled principles governing s. 92 of the Code are equally Applicable to s. 50 of the see. It accordingly held following the decision of Woodroffe, J. in Budree mukia v. Chooni lal Johurry, I.L R. (1906) 33 Cal. 789 at p.807, and various other decisions of different High Courts laying down the scope and effect of s. 92 of the Code and Dr.B.K. Mukherjea,s Tagore Law Lactures on the Hindu Low of Religious Charitable Trusts, 3rd tn end p. 347, that the suit contemplated by s. 50 of the act was one representative character. Tbe observations of woodroffe J. in the case of Budree Das Mukin v. Chooni Lal Johurry (supra ) which has become the locus classicus were to the effect;

Upon that view, the Full Bench answered the questions referred as follows :

1. The expression 'Persons having interest in the trust" occurring in s. 2(10) and 8.50 of the Act docs not include the trustees when they institute the suits in their capacity as trustees for vindicating their private rights.
2. Consequently, two or more trustees of a public trust cannot file a suit under s.50(ii) of the Act for a declaration that the property belongs to the public trust and for possession of the same from a person holding lt adversely to the trust.