Shyamabai W vs Madan Mohan Mandir Sanstha
2013 Latest Caselaw 70 Bom

     sa116.98.odt                                                                                                 1/32 

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.




                                                                                                    
                              SECOND APPEAL No.116 OF 1998




                                                                      
     1.    Shyamabai wd/o. Surajkaran Joshi,
            Aged about 50 years.




                                                                     
     2.    Murarilal s/o. Surajkaran Joshi,
            Aged about 32 years.




                                                   
     3.    Nirmal s/o. Surajkaran Joshi.
            Aged about 28 years.
                           
     4.    Bhagwati d/o. Surajkaran Joshi.
            Aged about 18 years.
                          
     5.    Madhubala d/o.  Surajkaran Joshi.
            Aged about 12 years.
      


            Minor by Guardian Appellant No.1-Mother.
            All R/o. Shivaji Wes Khamgaon, 
   



             District-Buldhana.

     6.    Sau. Tejkawar Gopal Thanwi.





            R/o. Hyderabad.                                                       :      APPELLANTS

                                         ...VERSUS...

     Madan Mohan Mandir Sanstha,





     a public Trust by Trustee Bhaiji
     Kanji Ganatra,
     Aged about 65 Years,
     R/o. Khamgaon, Tah. Khamgaon,
     District : Buldhana.                                                         :       RESPONDENT




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     Shri J.T. Gilda, Advocate for the Appellants.




                                                                                                    
     Shri B.N. Mohta, Advocate for the Respondent.
     =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=




                                                                      
                                                     CORAM : S.B. SHUKRE, J.

nd October, 2013.

                                                     DATE    : 22                    




                                                                     
     ORAL JUDGMENT   :

1. This appeal is directed against the judgment and

decree passed by the Additional District Judge, Khamgaon in

Regular Civil Appeal No.75 of 1985, decided on 6.12.1996

dismissing the appeal of the appellants and confirming the

judgment and decree passed in Regular Civil Suit No.104 of

1984 by 2nd Joint Civil Judge, Senior Division, Khamgaon on

29.7.1985 decreeing the suit of the respondent for ejectment,

possession and mesne profits. The appellants are the legal

heirs of the original defendant and respondent is the original

plaintiff. The respondent had filed a suit bearing Regular Civil

Suit No.101 of 1984 for ejectment, possession and mesne

profits. The suit filed by the respondent Madan Mohan

Mandir Sanstha, a registered Public Trust was through one of

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it's trustees, Gokuldas Kalyanji Shelarka. It was the case of the

respondent that original defendant (hereinafter referred to as

"appellants" for the sake of convenience) was inducted in the

suit house, as described in plaint paragraph No.1, as tenants on

monthly rent of Rs.25/-. The respondent, sought permission

from the Rent Controller and Resident Deputy Collector,

Buldhana for issuing a quit notice and sent a notice to the

appellants on 29th July, 1984 intimating them that their

tenancy stood terminated with effect from 30.4.1984. After

receiving notice, appellants did not hand over the possession of

the suit house, and therefore, respondent brought a suit against

them for ejectment and mesne profits. The suit was resisted by

them on various grounds. One of the grounds of contest was

that the respondent had no authority to file a suit on behalf of

the Trust, Madan Mohan Mandir Sanstha (hereinafter referred

to as "the Trust" for the sake of brevity). The trial Court

framed six issues, and one of them was, whether or not

Gokuldas Kalyanji Shelarka was duly authorized to sue for and

on behalf of the Trust. Substantial questions of law involved in

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this appeal resolve around this issue. The other issues related

to legality and validity of the quit notice, entitlement of the

Trust to the possession of the suit house, tenability of suit for

want of permission of Charity Commissioner under Section 51

of the Bombay Public Trusts Act, 1950 and decision of Rent

Controller operating as res-judicata regarding the rate of rent

with which we are not concerned in this appeal.

2.

The trial Court after considering the evidence

adduced by the rival parties found that respondent was duly

authorized to file the suit and the Trust was entitled to

possession of suit house, and accordingly decreed the suit by its

judgment and order passed on 29.7.1985. Aggrieved by this

decree, appellants filed an appeal before the Additional District

Judge, Khamgaon, Distt. Buldhana. The leaned Additional

District Judge, Khamgaon confirmed the judgment and decree

of the trial Court and dismissed the appeal by its judgment and

order passed on 6th December, 1996. Not satisfied with this

Judgment, the appellants have preferred the present Second

Appeal. The appeal was admitted by this Court on 15th June,

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1998 on the following substantial questions of law :

1) Whether the suit in the present form as filed by one of the trustees is

maintainable without there being made all the trustees and the plaintiffs in this suit ?

2) Whether the learned Additional

District Judge was right in not deciding the application filed by the appellant under Order 6 Rule 17 at Exhibit-10, dated 7.4.1994, for amendment of the written statement

incorporating the defence about non-joinder of proper and necessary parties ?

3. There appears to be some typographical error in

formulating the question No.1, and therefore, it is

re-formulated as under :

Whether the suit filed in the present form by one of the trustees is maintainable without all trustees being joined as plaintiffs in the suit ?

4. The appeal was heard by the learned Single Judge of

this Court. The learned Single Judge in his judgment rendered

on 6th August, 2009 framed four substantial questions of law

which are re-produced as under :-

(i) Whether Sections 47 and 48 of the Indian Trusts Act, 1882 are applicable to a Public

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Trust and consequently whether all the trustees of such Public Trust are required to be joined as

party to the suit for eviction of a tenant ?

(ii) Whether in the absence of

instrument of trust, and in the wake of Sections 47 and 48 of the Trusts Act showing a provision for delegation of any of the duties of a trustee, a resolution authorising one trustee to file a suit

passed by majority by the executive committee of the Trust would be a good substitute for the instrument of trust ?

(iii) Whether passing of a resolution to

authorise one trustee to file suit against the tenant for eviction can be said to be a delegation in

'regular course of business' within the meaning of Section 47......or (b) of the Indian Trusts Act ?

(iv) Whether in the absence of registration of a public trust, in addition, under the Societies Registration Act, the provisions of Societies Act and Sec. 6 thereof, would apply to

such a public trust on the strength of definition of Public Trust under Section 2(13) of the Bombay

Public Trusts Act, 1950 ?

5. The learned Single Judge after considering the law

laid down in the case of Gopal Sridhar Mahadeb vs. Sashi

Bhusan Sarkar, reported in AIR 1933 Calcutta 109, held that

the unanimous resolution passed by the governing body of a

public trust cannot be a substitute for instrument of trust

showing delegation of power to file suit nor such resolution

would be in "ordinary course of business" within the meaning

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of Section 47.... or (b) of the Indian Trusts Act, 1882 and

accordingly answered the question Nos.2 and 3 referred to

above, as in the negative. The learned Single Judge, however,

in view of the conflicting decisions of this Court in various writ

petitions thought it appropriate to refer the controversy arising

out of question Nos.1 and 4 referred to above, to Full Bench of

this High Court and accordingly he directed the Registry to

place the matter before the Hon'ble the Chief Justice for

constitution of Full Bench for answering these two questions.

In another writ petition bearing Writ Petition No.3749 of 2008

the learned Single Judge of this High Court during the course

of hearing of the writ petition also came across similar

questions. The learned Single Judge, therefore, framed three

questions in the following terms :

(i) Whether Section 47 of the Indian Trusts Act is applicable to a public trust and thus limits the powers of the Board of Trustees to

delegate their powers in regard to institution of suit for recovery of the trust property to one of their colleagues ?

(ii) Whether therefore a suit instituted by one of the trustees for possession would be maintainable ?

(iii) Whether by virtue of public trust

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being a society, a suit for recovery of property at the instance of the Chairman, President, Secretary

of the public trust alone is maintainable under Section 6 of the Societies Registration Act ?

6. The learned Single Judge in the said writ-petition

also directed the Registry to place the matter before the Honble

the Chief Justice for constitution of larger Bench for answering

the above questions.

7. Accordingly, the Hon'ble the Chief Justice was

pleased to constitute the Full Bench. After hearing parties, the

Full Bench of this Court answered the said questions by its

judgment rendered in Second Appeal No.116 of 1998 with Writ

Petition No.3749 of 2008 on 10th December, 2009.

8. So far as concerned the first question raised in this

appeal and also in Writ Petition No.3749 of 2008 about

applicability of the provisions of Sections 47 and 48 of the

Indian Trusts Act, 1882 to public trusts and about putting limits

on powers of the trustees to delegate power to file suit for

recovery of trust property, the questions were answered by the

Full Bench as in the negative. The second question raised in

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this appeal related to applicability of Section 6 of the Societies

Registration Act, 1860 to a public trust not registered under the

Societies Registration Act, 1860 only on the strength of

definition of Public Trust as given under Section 2(13) of the

Bombay Public Trusts Act, 1950. It was also answered as in the

negative by the Full Bench. The Full Bench further found that

the second question referred to it by the learned Single Judge

in Writ Petition No.3749 of 2008 would have to be decided in

the facts and circumstances of the case, in the light of the law

laid down by the Hon'ble Supreme Court in the case of J.P.

Srivastava & Sons (P) Ltd. & ors. vs. Gwalior Sugar Co. Ltd.

& Ors. reported in (2005) 1 SCC 172. As regards the third

question referred to it in the Writ Petition No.3749 of 2008, the

Full Bench held that the question did not arise for

consideration before the learned Single Judge nor was there

any conflict of opinion expressed in that regard by other

learned Single Judges. The references were accordingly

answered in the above terms and the record and proceedings

were remitted to the respective Courts for disposal of the

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matters in accordance with law. This is how the present appeal

is before this Court for it's disposal on merits of the case.

9. Now, in the light of the questions so answered by the

Full Bench of this High Court that the substantial questions of

law involved in the appeal would have to be determined,

having regard to the arguments advanced on behalf of rival

parties and the evidence available on record.

10.

Shri Gilda, learned counsel for the appellants has

submitted that Section 6 of the Societies Registration Act, 1860

(hereinafter referred to as "Societies Act, 1860" for the sake of

brevity) would not be applicable to this case for the reason that

there is no pleading in the plaint that the Trust which is a

Public Trust registered under the provisions of the Bombay

Public Trusts Act, 1950, (hereinafter referred to as "BPT Act,

1950" for the sake of brevity) is also a society registered under

the provisions of the Societies Act, 1860, and therefore, benefit

of Section 6 of the Societies Act, 1860, which allows the

President, Chairman or Principal Secretary or trustees as

determined by the rules and regulations of the Societies to sue

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or be sued on behalf of the Society, would not be available to

the respondent. He further submits that in such a case the

resolution passed by the executive committee of the Trust

authorizing the respondent/plaintiff to file a suit for eviction of

the appellant No.1 cannot be justified by taking recourse to

Section 6 of the Societies Registration Act, and it would have to

be seen if the resolution is hit by rule against delegation which

is based on general principles applicable to all trusts, private or

public. He further submits that in the instant case admittedly

no instrument of trust was produced on record and, therefore,

answers given by learned Single Judge of this Court in his

judgment rendered in this case on 6th August, 2009 would have

to be considered and followed by this Court. The learned

Single Judge in the said Judgment while answering questions

No.2 and 3 as reproduced earlier has held that in the absence

of instrument of trust and in the wake of Sections 47 and 48 of

the Indian Trusts Act, 1882, a resolution authorizing one

trustee to file a suit passed by the majority of the executive

committee of the trust would not be a good substitute for the

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instrument of the trust and that such a resolution cannot be

said to be a delegation in "regular course of business" within

the meaning of Section 47....or (b) of the Indian Trusts Act,

1882 (hereinafter referred to as "Trusts Act, 1882, for the sake

of brevity). He further argues that even though the Full Bench

of this Court has held that Sections 47 and 48 of the Indian

Trusts Act, 1882 are not applicable to the public trusts covered

by the provisions of the BPT Act, 1950, in view of the law laid

down by the Hon'ble Supreme Court in the case of Sk. Abdul

Kayum & ors. vs. Mulla Alibhai & ors. reported in AIR 1963

SC 309, the ratio of the case of State of Uttar Pradesh vs.

Bansi Dhar & Ors. reported in AIR 1974 SC 1084, would

make it clear that there are certain common principles which

cover all trusts, private and public and merely because they

find a place in the Trusts Act, 1882 they cannot become

"untouchable" where public trusts are involved. Therefore,

according to him, even without any reference being made to

Sections 47 and 48 of the Trusts Act, 1882, the first substantial

question of law involved in this appeal would have to be

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answered in favour of the appellants by holding that a suit filed

for eviction of a tenant by one of the trustees, is not

maintainable at law unless all the trustees are joined as

plaintiffs in the suit. The learned counsel for the appellants

places his reliance additionally on cases listed as below :

1) Servants of India Society, Poona 4, vs. Charity Commissioner of Bombay, AIR 1962 Bombay 12.

2) Board of Trustees Ayurvedic and Unani Tibia

College, Delhi vs. State of Delhi (Now Delhi Administration) and another, AIR 1962 SC 458.

3) Duli Chand vs. M/s. Mahabir Pershad Trilok Chand Charitable Trust, Delhi, AIR 1984 Delhi 145.

4) Kishore Joo vs. Guman Behari Joo Deo, AIR

1978 Allahabad 1.

5) Mandir Jamuna Dass Jawaharlal S. Sanatan Dharam Mahabir Dal Trust, Ambala, Cantt. vs. Shankar Dass, 2003 A I H C 3337.

11. On the other hand, Shri Mohta, learned counsel for

the respondent has submitted that Full Bench of this Court has

already answered the questions framed and referred to it by the

learned Single Judges of this Court for their answers in this

appeal as well as in Writ Petition No.3749 of 2008 and these

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answers simply favour the case of the respondent that the

provisions of Sections 47 and 48 of the Trusts Act, 1882 are not

applicable to the public trusts covered by the BPT Act, 1950

and that resolution passed by the executive committee of the

Trust unanimously or by majority authorizing a trustee to file

civil suit for eviction of a tenant is a valid delegation of duties

and functions of the trust and that such a suit is not bad in law.

Therefore, he submits that in this appeal, no further questions

survive and the judgments on which reliance has been placed

by the learned counsel for the appellants would not help the

case of the appellant. He has also submitted that existence of

resolution of the trustees authorizing one trustee of the

respondent to file civil suit for recovery of possession against

the appellants was not only pleaded in the plaint, but was also

proved by Purushottamdas (PW 1) and no challenge has been

made to the resolution by the appellants. He, therefore,

submits that the suit as filed by respondent against the

appellants was maintainable at law and there is no need for

this Court to interfere with the impugned judgment and decree

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in any manner.

12. Upon consideration of the answers given to the

questions referred to the Full Bench of this Court by learned

Single Judges of this Court, I am of the considered view that

Shri Mohta learned counsel for the respondent is right when he

submits that authorization given to the respondent/Madan

Mohan Mandir Sanstha Trust, Khamgaon, a registered public

trust, to file a suit for ejectment, recovery of possession and

mesne profits was a valid delegation of duty to execute the

trust as it fell within the exceptions recognized by law.

Consequently, I find no substance in the argument canvassed in

this behalf by Shri Gilda learned counsel for the appellants.

13. The Full Bench of this Court, while answering the

questions relating to applicability of Sections 47 and 48 of the

Indian Trusts Act, 1882 has extensively referred to law laid

down by the Hon'ble Supreme Court in the cases of (i)

Thayarmmal (dead) by L.Rs. vs. Kankammal, reported in

(2005) 1 SCC 457, and (ii) Sk. Abdul Kayum & ors. vs. Mulla

Alibhai & ors. (supra). By placing reliance upon the principles

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laid down in these cases, it held that Sections 47 and 48 of the

Trusts Act, 1882 are not applicable to a public trust. The Full

Bench also found that Courts interpret laws and do not legislate

any, and therefore, from this perspective also, applying the

provisions of Sections 47 and 48 of the Trusts Act, 1882 to the

public trusts without there being any legislation to that effect

evolved by the Parliament or State Legislature would not be

permissible. It would be useful to re-produce the relevant

observations of the Full Bench as appearing in paragraph 9 of

its Judgment dated 10.12.2009 and they are as under :-

"..........In the instant case, provision of

Section 1 the Indian Trusts Act stipulates that

though the provisions of the Act are extended to the whole of India except State of Jammu and Kashmir and Andaman and Nicobar islands, however, it is made clear that no provision of the

Act will affect the rules of Muhammadan law as to Wakf or the mutual relations of the members of an undivided family as determined by any customary or personal law or to the public or private religious and charitable endowments.

Section 1, therefore, in no uncertain terms excludes applicability of the provisions of Indian Trusts Act to the public trusts. It is no doubt true that Bombay Public Trusts Act, 1950 came into force at later in point of time. However, that does not mean that the provisions of the earlier Act can be picked up as and when it is convenient to do so.

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It is well settled that provisions of the earlier Act can be read in subsequent Act only when the

Legislature comes up with proper legislation, i.e. Legislation by adoption, legislation by reference or

legislation by incorporation or by amending the Acts. It is not the job of the Court to read the provisions of one Act into another by adopting one of these methods since it is for the Parliament or

the State Legislature to undertake this exercise and come up with appropriate legislation. The Courts interpret laws and do not legislate any. It is from this perspective also, applying the

provisions of Sections 47 and 48 of the Indian Trusts Act to the public Trusts without there being

any legislation to that effect evolved by the Parliament or State Legislature, in our view,

would be impermissible and more so because the Supreme Court also endorsed its seal of approval by holding that provisions of the Indian Trusts Act are applicable only to the private Trusts and not

to the public Trusts in the case of Thayarammal (cited supra).

14. The Full Bench also considered the true meaning of

the observations of the Hon'ble Supreme Court in the case of

State of Uttar Pradesh vs. Bansidhar and others, (supra),

wherein the Hon'ble Supreme Court has laid down that even

though the provisions of the Indian Trusts Act, 1882 do not, by

their own force, apply there are some common legal principles

which apply to all the trusts, private and public. The Hon'ble

Supreme Court also held that only because these common

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principles are embedded in the provisions of the Trusts Act,

1882, they would not be inapplicable or become "untouchable"

where public trusts are involved. The Hon'ble Supreme Court,

however, gave a word of caution by saying that care must be

taken not to import by analogy the provisions of the Trusts Act,

1882 when they are not germane to the general law of Trusts.

The Full Bench, after considering this decision, found that

Hon'ble Apex Court has rendered decision in the said case,

State of Uttar Pradesh vs. Bansidhar (supra), in the facts and

circumstances of that case and that it would not affect the

binding nature of law laid down by the Hon'ble Apex Court in

the case of Thayarammal (supra), which is a direct decision on

the subject. Observations of the Full Bench in this regard

appear in paragraph 14 and relevant portion thereof is re-

produced as under :-

".........The careful reading of the above

observations of the Apex Court shows that it has given a note of caution that care must be taken not to import any analogy, which is not germane to the general law of the trusts and it is in the light of these observations, the recent decision of the Apex Court in the case of Thayarammal (cited supra) assumes importance, which has been

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rendered by the Apex Court keeping in view the preamble and provisions of the Indian Trusts Act

and held that it is applicable only to the private trusts and not to the public trusts. The Apex

Court has rendered decision in the case of State of Uttar Pradesh (cited supra) in the peculiar facts and circumstances of that case and it does not affect the binding nature of law laid down by the

Apex Court in the case of Thayarammal since it is the direct decision on the subject. It is in this factual and legal background, we answer the question about applicability of provisions of

Sections 47 and 48 of the Indian Trusts Act, 1882 to the public trusts in negative."

15. So far as the question, whether or not Section 6 of

the Societies Registration Act applies to a public trusts not

registered under the Societies Registration Act, 1860, is

concerned, the Full Bench has already answered it in the

negative. In any case, this question does not fall for

consideration in the instant case as it is not the case of the

respondent/trust that it is also a Society registered under the

Societies Act, 1860.

16. So, after having seen the decision given by the Full

Bench of this Court that the provisions of Sections 47 and 48 of

the Indian Trusts Act, 1882 do not apply to a public trust, as

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the one in this case, which decision would be binding on this

Court, next question would be as to whether or not the suit

filed by one of the trustees for and on behalf of the Trust for

ejectment and possession would be maintainable at law. This

is precisely the first substantial question of law on which this

appeal has been admitted.

17. In order to answer this question, once again it would

be necessary to fall back upon the answer given to the question

No.2 of the reference made in Writ Petition No.3749 of 2008 -

"Whether, therefore, a suit instituted by one of the trustees for

possession would be maintainable ?". Needless to say, the Full

Bench had already given a negative answer to the first question

referred to it by the learned Single Judge in this writ petition,

that question being similar to the question referred to Full

Bench by Single Judge in this appeal.

18. The Full Bench after referring the law laid down by

Hon'ble Supreme Court in the case of J.P. Srivastava & Sons (P)

Ltd. and others vs. Gwalior Sugar Co. Ltd. & Ors. Reported in

(2005) 1 SCC 172, held that said question would have to be

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decided by the learned Single Judge on the facts and

circumstances of the case, having regard to the law laid down

by the Hon'ble Supreme Court in the said case of J.P.

Srivastava. The relevant observations of the Full Bench as

appearing in paragraph 20 of its judgment are re-produced

thus:

"So far as the second question referred to us by Justice C.L. Pangarkar is concerned, it

will be appropriate to reproduce the observations of the Apex Court in para 29 of the judgment in the case of J.P. Srivastava & Sons (P) Ltd. and

others vs. Gwalior Sugar Co. Ltd. and others (2005) 1 SCC 172, which are as follows :

"29. Therefore, although as a rule, trustees must execute the duties of their

office jointly, this general principle is subject to

the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or

approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co- trustee is in the regular course of the business, (6)

where the co-trustee merely gives effect to a decision taken by the trustees jointly."

The above observations of the Apex Court clearly demonstrate that as a general rule, the trustees must execute duties of their office jointly.

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However, this general rule is not without exceptions and those exceptions as mentioned by

the Apex Court are: Where one of the trustees can act upon the decision taken by the majority of the

trustees, or by express sanction or approval by the co-trustees, or where the beneficiaries competent to contract consent to the delegation, or where the delegation to a co-trustee is in regular course of

business or where the co-trustee merely gives effect to the decision taken by the trustees jointly. It is in the light of the law laid down by the Apex Court, the question No.2 referred to us by Justice

C.L. Pangarkar will have to be decided by the learned Single Judge on the facts and

circumstances of the case."

19. This answer given by the Full Bench of this Court will

also be binding on this Court.

20. Let me now recapitulate, for the sake of convenience,

the answers given by the Full Bench in references made to it.

They can be stated thus- (i) Sections 47 and 48 of the Indian

Trusts Act, 1882 do not apply to the public trusts, (ii) as a

general rule, the trustees must execute duties of their office

jointly and (iii) the general rule of joint execution of duties is

subject to certain exceptions as mentioned by the Hon'ble Apex

Court in the case of J.P. Srivastava (supra). These exceptions

indicate that one of the trustees can act singularly or perform

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duties of the co-trustees in situations where the trust deed

allows the trust to be executed by one or more of the trustees

or where there is express sanction or approval of the act by the

co-trustees or where the delegation of power is necessary or

where the beneficiaries competent to contract consent to the

delegation or where the delegation to a co-trustee is in regular

course of business or where a co-trustee merely gives effect to

the decision taken by the trustees jointly.

21. The above referred discussion of the legal principles

enunciated by the Hon'ble Apex Court and also the law laid

down by the Full Bench of this Court while answering the

questions referred to it in this appeal as well in Writ Petition

No.3749 of 2008 would demonstrate that even though Sections

47 and 48 of the Indian Trusts Act, 1882 do not apply in terms

to the public trusts, there are some common principles, which

are not out of bounds or which do not become "untouchable"

when it comes to their application to public trusts. One such

principle is of general rule against the delegation which does

apply to public trusts but it is subject to certain exceptions.

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These exceptions as stated in the case of J.P. Srivastava (supra)

by Hon'ble Supreme Court are reiterated by the Full Bench of

this Court in its Judgment dated 10.12.2009 and have already

been mentioned earlier.

22. In the light of these exceptions that we have to see

whether the suit filed in the present form by one of the trustees

in the absence of all the trustees is maintainable or not.

23.

In this case, the respondent has already proved in

evidence a resolution of the respondent/Trust (Exhibit-23)

authorizing Gokuldas Kalyanji and one Purushottamdas

Chatrabhujdas (PW 1) to file the suit for ejectment and

possession against the appellants. This resolution has been

proved by the respondent through the evidence of

Purushottamdas (PW 1) and as rightly submitted by the

learned counsel for the respondent, no challenge absolutely has

been made to the evidence adduced in this behalf by

Purushottamdas. This resolution authorizes the said persons to

file a suit in its present form against the appellants and

accordingly the suit has been filed. This resolution may not be

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a good substitute for an instrument of trust or may not be a

delegation 'in regular course of business' as held by learned

Single Judge in his judgment rendered on 6.8.2009 making

reference to Full Bench. But, facts remain that it expressly

confers authority to file suit and it is passed by the

respondent/Trust. Therefore, it amounts to express sanction or

approval given by the trustees to said Gokuldas or

Purushottamdas to file a suit for ejectment and recovery of

possession making it squarely fall within one of the exceptional

situations enumerated by the Full Bench of this Court and also

by Hon'ble Apex Court in the case of J.P. Srivastava (supra), in

which one of the trustees can execute the duties of the co-

trustees. For these reasons, said resolution cannot be said to be

in violation of any principle of law applicable generally to all

public trusts. Consequently, on it's basis one of the trustees

named therein could have filed the suit without other

co-trustees joining him in the action. This is what has

happened in the present case.

24. In the cases of Duli Chand (supra), Kishore Joo

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(supra) and Mandir Jamuna Dass (Supra) referred to me by the

learned counsel for the appellants, High Courts of Delhi,

Allahabad and Punjab and Haryana have held that unless the

instrument of trusts otherwise provides, all co-trustees must

join in the suit to recover possession of the property from the

tenant, and that delegation of duty of trustee is only

permissible where the instrument of trust so provides or

delegation is in the regular course of business or the delegation

is necessary or the beneficiaries being competent to contract

consent to the delegation or otherwise no application or suit to

recover possession of the property from the tenant can be filed

by one of the trustees. I have already noted that the law laid

down by Full Bench of this Court is binding on this Court and

following it I have further found in a very specific manner as to

how the resolution passed by the respondent/Trust in favour of

Purushottamdas and/or Gokuldas to file a suit for recovery of

possession falls within the ambit of exceptions to general

principles applicable to all trusts, private and public. The

exceptional situation of express sanction or approval having

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been given by the co-trustees in favour of another trustee to

execute their duties, does exist in the instant case. Therefore,

the judgment rendered in these three cases would not help the

appellants in any way in the present appeal. There is one more

judgment relied upon by the learned counsel for the appellants

rendered in the case of Servants of India Society, Poona 4

(supra), wherein learned Judge on the difference of opinion

between learned Judges of the Division Bench took a view that

the Bombay Public Trusts Act, 1950 applies to a society such as

Servants of India Society, even though it is registered under the

Societies Registration Act, 1860 and has its objects not confined

to the State of Maharashtra. There is no dispute about this

principle which has been approved by the Hon'ble Apex Court

in the case of Board of Trustees, Ayurvedic and Unani Tibia

College, Delhi, (supra). However, in the instant case it is not

the case of respondent that apart from it being a trust

registered under the provisions of the BPT Act, 1950, it is also a

society registered under the Societies Act, 1860 and, therefore,

said principle would have no application to the facts of this

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case.

25. In view of the above discussion, I find that suit as

filed in the present form by the respondent is maintainable

even though all trustees have not been joined as plaintiffs in

the suit. The first substantial question of law is, therefore,

answered as in the affirmative.

26. This brings me to the second substantial question of

law. The learned District Judge before whom the application

(Exhibit-10) dated 7.4.1994 was filed under Order 6 Rule 17,

Code of Civil Procedure, 1908 ('CPC' in short) seeking grant of

permission to amend the written statement so as to incorporate

therein the defence about non-joinder of proper and necessary

parties, did not decide it. So the question is whether or not the

learned Additional District Judge was right in not deciding this

application. Ordinarily, whenever such an application is filed

before the first appellate Court, it must be decided by that

Court and more particularly when the decision of that Court

would have its impact on the determination of the real

questions in controversy between the parties. Rule 17 of Order

sa116.98.odt 29/32

6, CPC confers a power upon the Court to allow the

amendment application if amendment is necessary for

determining real questions in controversy. This power is

available at any stage of the proceedings and the appeal being

continuation of the suit, the power is available even at

appellate stage. It has been held that principles behind Rule 17

of Order 6 CPC power are that object of Courts and rules of

procedure is to decide rights of parties and not to punish them

for their mistakes and to avoid uncalled for multiplicity of

litigation (see B.K. Narayan Pillai vs. Parmeswaran Pillai

(2000) 1 SCC 712). Therefore, the power could and should

have been exercised one way or the other by the first appellate

Court. But, the first appellate Court did not decide this

application and therefore it committed an error in this regard.

But, in the light of observations made by Hon'ble Supreme

Court in the said case of B.K. Narayan Pillai (supra) that

technicalities of law should not be permitted to hamper the

Courts in administration of justice, a further question would

arise, whether the error was a mere irregularity or was

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something which went to root of the matter vitiating the

proceedings before the first appellate and trial Courts. Answer

to the question would depend upon answer to another question

- Did it prevent the appellants from effectively defending

themselves or in other words, did it cause prejudice to the case

of the appellants ? If appellants were not prevented from

putting forward their case effectively and no prejudice has been

caused to the defence of the appellants, obviously the error

would be a mere irregularity having no bearing ultimately upon

a just decision in the case. To ascertain it, let us take a look at

the issues framed by trial Court. First issue framed by it is

relevant. It is as to whether Gokuldas who has signed the

plaint on behalf of the Trust, was authorized to sue for and on

behalf of the Trust to file a suit being a trustee thereof or not.

This issue is wide enough to take within it's fold impliedly the

issue about who should be the necessary parties, if the

contextual setting of the suit is taken into account. The suit

was filed by a trust and ordinarily such a suit has to be filed by

all the trustees, subject to exceptions noted above. So, the

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issue so framed did take care of the defence of the appellants as

such. This issue has been answered in the affirmative by the

trial Court. All the findings recorded by the trial Court

including the one on this issue have been confirmed by the first

appellate Court. I have also found, as discussed earlier, no flaw

or legal lacuna in the resolution authorizing said trustee to file

a suit on behalf of the trust. Once it is found that Gokuldas

was duly authorized to sue for and on behalf of the Trust being

a trustee thereof, it would follow by necessary implication that

the other trustees were not necessary parties and so need not

have been joined as plaintiffs. This is what I have already held

while answering the first substantial question of law. If this is

so, it cannot be said that by not deciding the application for

amendment of written statement so as to incorporate the

defence of non-joinder of necessary parties any prejudice has

been caused to the defence of the appellants or that they were

prevented in defending themselves effectively. In fact, their

defence is already well answered throughout. I, therefore, find

that the learned District Judge though was wrong in not

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deciding the application vide Exhibit-10 under Order 6 Rule 17

filed by the appellants, his such failure has not resulted in

causing of any prejudice to the defence of the appellants and it

was only a mere irregularity on his part which had no bearing

upon a just decision in this case. The second substantial

question of law is answered accordingly.

27. For the reasons stated above, this appeal fails. It

stands dismissed with costs.

JUDGE

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