Gollaleshwar Dev & Ors Vs.
Gangawwa Kom Shantayya Math & Ors [1985] INSC 233 (15 October 1985)
SEN, A.P. (J) SEN, A.P. (J) MADON, D.P.
CITATION: 1986 AIR 231 1985 SCR Supl. (3) 646
1985 SCC (4) 393 1985 SCALE (2)811
ACT:
Bombay Public Trust Act, 1950, sections
2(10), 50, 51 and 52(i) read with section 92 of Code of Civil Procedure, 1908,
scope of -Whether two or more trustees of a registered public trust can with
the permission in writing of the Charity Commissioner, 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 - Words
and phrases "Meaning of the phrase 'person having interest in the trust
occurring in section 2(10) of the Act - Persons having interest includes
trustees and other beneficiaries -
HEADNOTE:
The first appellant Gollaleshwar Dev is an
ancient temple situate in village Golgeri in the district of Bijapur which
formed part of the erstwhile State of Bombay prior to the reorganisation of the
States. Consequent upon the enactment of the Bombay Public Trust Act, 1950, the
temple was registered as a public trust. The district of Bijapur became part of
the new State of Karnataka on the appointed day i. e. November 1st, 1956 under
the States Reorganisation Act, 1956. The Bombay Public Trust Act continued to
remain in force in the areas which formed part of the erstwhile State of
Bombay. Appellant No.2 is the present trustee of the temple and appellant No. 3
the grandson of ex-trustee Mariyappa the elder brother of appellant No.2 is a
beneficiary.
it had been customary for the trustees to
permit persons rendering services to the temple to reside in suit premises on
leave and license basis. The respondents Shantayya and Smt. Shankarawa, who
were taken in the 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, started creating trouble
in the year 1957 with the result the father of appellant No.2 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 1937 in the name of the idol Shree
Gollaleshwar Dev as plaintiff No.1 with himself being 647 trustee as plaintiff
No. 2. The respondents contested the claim on various grounds and pleaded inter
alia, (i) that the temple had no right to title to the suit premises which
belonged to them by virtue of a registered gift deed dated February 19, 1917
executed by Mariyappa Lingappa the grandfather of appellant No. 3 in favour of
their Predecessor-in- title Balalochanayya Hiremath, the first license of the
suit premises; (ii) that the suits brought under section 50 (11) of the Act
were not maintainable for want of consent in writing given by Charity
Commissioner under section 51; ant (iii) that the Court of the Civil Judge,
Senior Division, Bijapur had no jurisdiction to entertain the suits. The suits
Mysore High Court in Marikamba Temple and Hanumant Temple, Sirsi, by its
Manager, S.S. Dhakappa v. Subraya Venkataramanappa Barkur reported in I.L.R.
1958 Mysore 736. Thereafter a Fresh Civil suit No. 2 of 1962 was instituted
before the District Judge Bijapur after obtaining the consent in writing of the
Charity Commissioner by the appellant No. 2's father as plaintiff No. 2 and the
idol as plaintiff No. 1. Later Appellant No. 3 in the capacity of a beneficiary
and Appellant No. 2 in the capacity of the present trustee were impleaded as
plaintiffs Nos. 2 and 3 as "persons interested in the trust." The
High Court in the meanwhile had reversed the decision in Marikamba's case in
Ganapathi Ram Naik & ANR. V. Kusta Shri Venkataraman Dev in 1964 I Mysore
LJ 172. Following the said D.B. decision in the District Judge held that,
although a suit for recovery of property belonging to the idol could be brought
either by the idol represented by section 50 (ii) of the act and was therefore
not maintainable and that such a suit would be a governed by the ordinary law
and would not lie in the District Court, but either in the Court of the Civil
Judge , Junior Division or the court of the Civil Judge, Senior Division
according to the valuation of the subject matter of the suit." Aggrieved
by the said Judgment the appellants preferred an appeal before the High Court.
A Division Bench which heard the appeal felt that the decision in Ganapathi
Ram's case required reconsideration and referred the matter for the opinion of
the Full Bench. The Full Bench upon the hypothesis that section 50 of the Act
is in pari materia with section 92 of the Code of Civil Procedure expressed
that the well- settled principles governing section 92 of the Code are equally
applicable to section 50 of the Act. It accordingly held: (1) that the suit
contemplated by section 50 of the Act was one of a representative character;
(ii) that a suit by a deity for possession being a suit for vindicating its own
personal rights 648 was not governed by section 50 of the Act that persons who
institute suits in their capacity as trustees do so not in their representative
capacity representing the interests of the public but in their own individual
or personal capacity to vindicate their own rights or that of the idol that is
to say, merely because trustees . were persons having interest in the trust the
provision of section 50(ii) of the Act would not be attracted to a suit of this
kind. Upon that view the full Bench answered the question referred to it as
follows: (i) the expression "persons having interest in the trust"
occurring in section 2(10) and section 50 of the Act does not include the trustees
when they institute the suits in their capacity as trustees for vindicating
their private rights; and (ii) consequently two or more trustees or a public
trust cannot file a suit under section 50(11) of the Act for a declaration that
the property belongs to the public trust and for possession of the same from a
person holding it adversely to the trust. In accordance with the opinion of the
Full Bench, the Division Bench dismissed the appeal filed by the appellants.
Hence the appeal by special leave.
Allowing the appeal, the Court ^
HELD : 1.1 The expression "person having
interest" in a trust occurring in section 2(10) and section 50 of the
Bombay Public Trust Act cannot be given a restrictive construction. The
definition of the expression "person having interest" in section - 2
(10) being an inclusive one, there is no Lawful justification to exclude the
suit brought by two or more trustees in the name of the idol, to recover
possession of its property against a person holding it adversely to the trust
from the purview of section 50(ii) of the Act. The definition of the words
person having interest" in section 2 (10) of the Bombay Public Trust Act,
as amended in 1953 was made inclusive to set at rest all doubts and
difficulties as to the meaning of these words, which were intended and meant to
be used in a generic sense so as to include not only the trustees but also the
beneficiaries and other persons interested in the trust.
The definition of the expression person
having interest in section 2(10) is wide enough to include not merely the
beneficiaries of a temple, math, wakf etc. but also the trustees. Therefore
appellants Nos. 2 and 3 who undoubtedly are members of the founder's family
i.e. beneficiaries, are entitled to attend at performance of worship or service
in the Distribution of offering to the also entitled to partake in the
distribution of offering to the deity and thus answer the description
"person having inter" as defined in Section 2 (10) of the Act.
[657A-D;
660 A-B] 649
1.2 Provisions contained in sections 50 to 52
of the Bombay by Trust Act make it clear that the Act created and regulated a
right to institute a suit by the Charity Commissioner or by two or more persons
interested in the trust, in the form of supplementary statutory provisions without
defeasance of the right of manager or a trustee or a shebait of an idol to
bring suit in the use idol to recover the property of the trust in the usual
way.
Further, although although sub-section (1) of
section 52 makes sections 92 and 93 of the Code of Civil Procedure inapplicable
to public trust registered under the Act, it has made provision by section 50
for institution of such suits the Charity Commissioner or by two or more
persons interested in the trust and having obtained the contest in writing of
the Charity Commissioner under section 50 of the Act. Therefore, any two or
more persons interested in the trust should not deprived of the right to bring
a suit as contemplated by section 50 (ii) (a) of the Act. 1658 D- F]
1.3 section 50 of the Bombay Trust Act is not
in pari materia with section 92 of the Code of Civil Procedure.
Although section 50 of the Act is structured
upon the pattern of section 92 of the Code of Civil Procedure, there is no
provision in section 92 of the Code analogous to clause (ii) or relief (a ) of
section 50 of the Act.
Section 50 authorises the institution of a
suit by the Charity Commissioner or two or more persons interested in the trust
only in the District Court having jurisdiction to try it. The scope of section
50 of the Act is wider than that of section 92 of the Code of Civil Procedure.
It applies to a case so long as the relief claimed falls within the scope of
the section. One of the reliefs that can be claimed in a suit brought under
section 50 of the Act is that covered by relief (a) set out in clause (ii)
namely for a declaration that a certain property belongs to a public trust and
for possession thereof from person holding it adversely to the trust viz. suit
brought by the Charity Commissioner or two or more persons interested and in
the trust with his consent in writing as provided in section 51 of the Act.
Section 50 of the Bombay Trust act
contemplated not only suits of a representative character but also suit by two
or yore trustees for preservation of the property of the trust.
Therefore, in a suit filed the Idol to
enforce it private rights, the provision of section 92 of the Code of civil
Procedure are not attracted.[659 D-H] Bisimannath & Anr. v. Shri Thakur
Radhaballabhji & ors.[1967] 2 S.C.R.. 618 distinguished.
650 Ganapathi Ram Naik v. Kumta Shri
Venkataraman Dev I.L.R. A 1963 Mysore 1059 overruled.
Shree GOLLALESHWAR Dev & Ors. v. Gangawwa
Kom Shantayya Math Ors., A.I.R. 1972 Kart (F.B.) p. reversed.
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.
Put very briefly, the essential facto are
there. Shree GOLLALESHWAR Dev is an ancient temple and is situate in village
Golgeri in the district of Bijapur which formed part of the erstwhile State of
Bombay prior to the reorganization of the States. consequent upon the enactment
of the Bombay Public Trusts Act, 1950, the temple was registered as a public
trust. The district of Bijapur became part of the new State of Karnataka on 651
the appointed day i.e. November 1, 1956 under the States Reorganization Act,
1956. The Act has continued to remain in force in the areas which formed part
of the erstwhile state of Bombay.
It had been customary for the trustees to
permit persons rendering services to the temple to reside in the suit premises
on leave and licence. The subject-matter in dispute consisting or arches
alongside the eastern, northern and southern walls of the temple are meant for
the use of devotees for their temporary rest and stay, when they come to visit
the temple. The main temple itself is situated in the middle surrounded by an
open courtyard. The suit premises being within the four walls of the temple,
they form part of the temple and are entered in the certificate of registration
as belonging to the temple.
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 652 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.
It was after this that the present suit was
brought by the aforesaid plaintiffs in the Court of the District Judge, Bijapur
as Civil Suit No. 2 of 1962 under 8. 50(ii) of the Act for the aforesaid
reliefs, with the consent in writing of the Charity Commissioner granted under.
8. 51. As earlier, the suit was instituted by appellant no. 2's father as
plaintiff no. 2 in the name of idol Shri Gollaleshwar Dev as plaintiff no. 1.
Plaintiff no. 2 was impleaded as the present trustee of the temple and
plaintiff no. 3 as the grandson of Mariappa, the elder brother of plaintiff no.
2.
as a beneficiary. Plaintiffs nos. 2 and 3 joined
the suit as persons interested in the trust'. The High Court in the meanwhile
had revered the decision in Marikamba's case in Ganapathi Ram Naik & Anr.
v. kumta Shri Venkataraman Dev, 1964 1 My-ore L.J. 172. The learned District
Judge following the decision in Ganapathi Ram Naik's case held that although a
suit for recovery of property belonging to the idol could be brought either by
the idol represented by the trustee or the manager, such a suit is not
contemplated by s. 50(li) of the Act and was therefore not maintainable. It was
observed :
"The words 'persons having interest in
the Trust' in 6. 50 denote a person whose interest is inferior to 653 that of
trustee or manager and it is by reason of the existence of that inferior or
that inferior or smaller interest that s. 50 of the Act like s. 92 of the Code
of Civil Procedure 1908 authorises the institution of suit regulate it in the
manner provided there in. But that section does not govern the institution of a
suit by a person possessing higher and higher interest which is not regulated
by it." The learned district Judge accordingly held that such a suit would
by governed by the ordinary law and would not lie in the District Court but
either in the Court of the Civil Judge, Junior Division or the Court of the
Civil Judge, junior Division, according to the valuation of the subject-matter
of the suit.
Aggrieved by the judgement of the District
Judge the appellants preferred an appeal before the High Court. A Division
Bench which heard the appeal felt that the decision in Ganapathi Ram's case
required consideration and framed two questions for the opinion of the full
bench, namely :
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;
654 "The suit contemplated by the
section is one of a representative character.
It is obvious that the Advocate-General,
Collector or other Public Officer can and do sue only as representing the
public and if, instead of these public officers, two or more persons having an
interest in the trust, sue with their consent, they so sue under a warrant to
represent the public as the objects of the trust : see Lakshmandas Raghunath
Das v. Jugal Kishore, I.L.R.
(1896) 22 Bom. 216, 220.
It follows from this that when a person or
persons sue not to establish the general member or members, but to remedy a
particular infringement of their own individual right, the suit is not within
or need not be brought under the section." It next relied upon the
decision of this Court in Bishwanath & Anr. v. Shri Thakur Radhaballabhji
& Ors.
[19671 2 S.C.R. 618, laying down that a suit
by an idol, as a juristic person against persons who interfered unlawfully with
the property of the idol, was a suit for enforcement of its private right and
was therefore not a suit to which s.
92 of the Code applied and thus such a suit
was outside the purview of s. 92 of the Code and it was not a bar to is
maintainability, for the conclusion that a suit instituted by the idol
represented by its trustees or by presons as qua trustees for recovery of trust
property is a suit for enforcement of the private rights of the idol or the
trustees.
The Full Bench approved of the view expressed
by Somnath Iyer and Gopivallabha Iyengar, JJ. in Ganpathi Ram Naik v. Kumt Shri
Venkataraman Dev I.L.R. (1963) Mys. 1059, that a suit by a deity for possession
being a suit for vindicating its own personal rights was not governed by 8.
50 of the Act but disagreed with it on the
construction placed by it upon the words 'person having interest' in s.2(10)
and s. 50 of the Act. The Division Bench in Ganapathi Ram's case held that the
expression 'person having interest' denotes one whose interest is inferior two
that of a trustee or a manager and it is by reason of existence of that
inferior or smaller interest that 8. 50 of the Act, like s. 92 of the Code
authorises the institution of a suit and regulates it in the manner provided
therein. It was of the view that s. 50 of the Act does not govern institution
of a suit by a person possessing larger and a higher interest which is not
regulated by it, and differed from the view taken by Hegde, J. in 655 Shri
Marikaba Temple v. Subraya Venkataramanappa, I.L.R.
(1958) Mys. 736, holding that a suit by an
idol represented by the trustee was governed by 8. 50 of the Act. me Pull Bench
accordingly held that persons who institute suits in their capacity as trustees
do 60 not in their representative capacity representing the interests of the
public but in their own individual or personal capacity to vindicate their own
rights or that of the idol. That is to say, merely because the trustees were
persons having interest in the trust, the provisions of s. 50(ii) of the Act
would not be attracted to a suit of this kind. Upon this reasoning, the Full
Bench observed .
"It is, therefore, clear that the
expression "two or more persons having an interest in the trust" s.
8. 50 of the Act cannot include the trustees bu persons other than the trustees
who have as interest in the trust. The reason for holding that the expression
"two - or more persons having an interest in the trust" cannot be
construed to include trustees, is not because the trustees are not persons
interested in the trust but because of the character of the suit contemplated
under 8. 50 of the Act.
The remedy of the idol represented by its
trustees or of the trustees to enforce their individual rights is not to
institute a suit under s. 50 but to sue in the ordinary courts in the usual way
as any other citizen, and for such a suit, the trustees are not required to
satisfy the conditions of s. 50 of the Act. A suit for recovery of trust
property instituted by a trustee t because one for enforcement of the right of
the public, but being merely for enforcement of the private rights of the trust
or trustees, does not, in our opinion, fall within the scope of section 50 of
the Act.
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 656 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.
In accordance with the opinion of the Full
Bench, the Division Bench dismissed the appeal filed by the appellants.
Before we advert to the argument based on
s.50 of the Act, it should be mentioned that it is undisputed that the temple
of Shree Gollaleswar Dev is a public temple registered as a public trust under
the provisions of the Act. The plaintiff- suing are, first, the idol, Second, a
trustee, and third, a member of the family cr-sting the endowment i.e. a
beneficiary. The question is whether the plaintiffs nos. 2 and 3 are persons
having an interest in the trust within the meaning of s.2(10) which reads :
"2(10) "Person having
interest" includes - (a) in the case of a temple, a person who is entitled
to attend at or is in the habit of attending the performence of worship or
service in the temple, or who is entitled to partake or is in that habit of
partaking in the distribution of gifts therof;
(b) in the case of a math, a disciple of the
math or a person of the religious pursuasion to which the math belongs ;
(c) in the case of a wakf a person who is
entitled to receive any pecuniary or other benefit from the wakf ant includes a
person who has a right to worship or to P perform any religious rite in a
mosque, idgah, imambara, dargah, maqbara or other religious institutions
connected with the wakf or to participate in any religious or charitable
institution under the wakf;
(d) in the case of a society registered under
tho Societies Registration Act, 1860, any member of such society; and (e) in
the Case of any other public trust, any beneficiary." The word 'trustee'
as defined in s. 2(18) reads :
657 "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;" By the Bombay Public Trusts
(Amendment) Act, 1953, the word includes' was substituted for the word 'means'.
me definition of the words 'person having interest' in 8.2(10) was made
inclusive to set at rest all doubts and difficulties as to the meaning of these
words, which were intended and meant to be used in a generic sense so as to
include not only the trustees but also the beneficiaries and other persons
interested in the trust. It would therefore appear that the definition of the
expression 'person having interest' in s.2(10) is wide enough to include not
merely the beneficiaries of a temple, math, wakf etc. but also the trustees. It
must therefore follow that plaintiffs nos.2 and 3 who undoubtedly are members
of the founder's family i.e..
beneficiaries, are entitled to attend at
performance of worship or service in the temple and also entitled to partake in
the distribution of offerings to the deity and thus answer the description
'person having interest' as defined in s.2(10) of the Act.
Section 50 of the Act on the construction of
which the appeal depends, insofar as material, provides as follows :
"50. In any case - (i) * * * * (ii)
where a declaration is necessary that a particular property is a property
belonging to a public trust or where a direction is required to recover the
possession of such property or the proceeds thereof or for an account of such
property or proceeds from any person including a person holding adversely to
the public trust, or (ii) where the direction of the court is deemed necessary
for the administration of any public turst.
The Charity Commissioner or two or more
persons having an interest in the trust and having obtained the consent in
writing of that Charity Commissioner as provided in Section 51 may institute a
suit whether contentious or not in the court within the local limits of whose
jurisdiction the whole or part of the subject matter of the trust is situate,
to obtain a decree for any of the following reliefs :
658 (a) an order for the recovery of the
possession of such property or proceeds thereof.
Sub-section (1) of s. 51 of the Act which
also has a material bearing, reads :
51(1) If the persons having an interest in
any public trust intend to file a suit of the nature specified in section 50,
they shall apply to the Charity Commissioner in writing for his consent.
The Charity Commissioner, after hearing the
parties and after making such inquiry as he thinks fit, may within a period or
six months from the date on which the application is made, grant or refuse his
consent to the institution of such suit. The order or the Charity Commissioner
refusing his consent shall be in writing and shall state the reasons, for the
refusal.
Sub-s.(l) of s.52 of the Act provides that
not with standing anything contained in the Code of Civil Procedure, 1908, the
provisions of s.92 of the Code shall not apply to the public trusts governed by
the Act.
It is clear from these provisions that s.50
of the Act created and regulated a right to institute a suit by the Charity
Commissioner or by two or more peron interested in the trusts in the form of
supplementary statutory provisions without defeasance of the right of the
manager or a trustee or a shebait of an idol to bring a suit in the name of
idol to recover the property of the trust in the usual way. There is therefore
no reason why the two or re person interested in the trust should be deprived
of the right to bring a suit as contemplated by s.50(ii)(a) of the Act.
Although sub-s.
(1) of s. 52 makes ss. 92 and 93 of the Code
inapplicable to public trues registered under the Act, it has made provision by
s. 50 for institution of such suits by the Charity Commissioner or by two or
more persons interested in the trust and having obtained the consent in writing
of the Charity Commissioner under a. 51 of the Act .
we are unable to subscribe to the view
expressed by the high Court. Although the full Bench rightly adverted to sub-
S. (13 or s. 52 of the Act which excludes the applicability of ss.92 and 93 of
the Code to the public trusts governed by the Act, it is not right in its
conclusion that a suit instituted by the idol represented by two or more
trustees, with the written consent of 659 the Charity Commissioner as provided
in s. 51 of the Act, was not within the purview of s. 50(ii)(a) of the Act and
therefore could A not be brought in the Court of the District Judge. Although
s. 50 of the Act is structured upon the pattern of s. 92 of the Code, the Full
bench failed to appreciate that there is no provision in s. 92 of the Code
analogous to cl(ii) or relief (a) of s. 50 of the Act. It will be seen from B.
50 that the section authorizes the institution of a suit by the charity
Commissioner or two or more persons interested in the trust only in the
District Court having jurisdiction to try it. The scope of s. 50 of the Act is
wider than that of s. 92 of the Code. It applies to a case so long as the
relief claimed falls within the scope of the section. One of the reliefs that
can be claimed in a suit brought under s. 50 of the Act is that covered by relief
(a) set out in cl. (ii) viz. for a declaration that a certain property belong
to a public trust and for possession thereof from a person holding it adversely
to the trust viz.
a suit brought by the Charity Commissioner or
two or re persons interested in the trust with his consent in writing as
provided in s. 51 of the Act.
The fallacy underlying in the reasoning of
the Full Bench lies in the wrongful assumption that s. 50 of the Act is in pari
materia with s. 92 of the Code. It is upon that erroneous hypothesis that it
observes that the suit contemplated by s. 50 of the Act is one of a
representative character. It overlooks the scope and effect of s. 50 of the Act
which contemplates not only suits of a representative character but also suits
by two or re trustees for preservation of The property of the trust. The
reasoning of the Full Bench that if the suit is filed by the idol to enforce
its private rights, the provisions of s. 92 of the Code are not attracted and a
fortiori the same principles equally govern suits under s. 50 of the Act, is
not worthy of acceptance. The Full Bench was also wrong in relying upon the
decision of this Court in Bishwanath's case which turned on the construction of
s. 92 of the code. In that case, it was held that the bar of s. 92 did not
apply to a suit by an idol or by its trustees for a declaration that the suit
properties belonged to the trust and for possession of the same from persons
holding the properties adversely to the trust inasmuch as such a suit is not a
suit of a representative character instituted in the interests of the public,
but is really a suit for the vindication of the individual or personal rights
or the deity or the trustees.
The decision in Bishwanath's case is
therefore clearly distinguishable and the principles laid down as to the
applicability of s.92 of the Code to such suits are not attracted.
660 There is no warrant for the restrictive
construction placed by the Full Bench on the expression 'person having
interest' in a trust occurring in 8. 2(10) and 8. 50 of the Act. The definition
of the expression 'person having interest' in s. 2 (10) belng an inclusive one,
there is Lawful justification to exclude the suit brought by two or re trustees
in the name of the idol, to recover possession of its property against a person
holding it adversely to the trust from the purview of 8. 50(ii) of the Act.
In the result, the appeal succeeds ant is
allowed with costs. The judgment and decree of the high Court affirming those
passed by the District Judge, Bijapur are set aside ant the plaintiffs' suit
for declaration of title to ant for posession of the suit property together
with mesne profits is decreed.
S.R. Appeal allowed.
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