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 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 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
that of trustee or manager and it is by reason of
the existence of that inferior or that inferior or
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;
"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 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
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 :
"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 -
(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 :
(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 subS. (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 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.
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.