Bombay High Court
Thakkar Kanji Morarjee And Anr vs The Charity Commissioner State Of ... on 4 December, 2014
Bench: R.S. Dalvi
jsn 1 Originating Summons No.774_2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINATING SUMMON NO.774 OF 2014
Thakkar Kanji Morarjee Bhatia Niwas
and Thakkar Vasanji Morarjee Chawl
Trust & Anr. ... Plaintiffs
Vs.
The Charity Commissioner & Ors. ... Defendants
Mr. Soli Cooper, Sr. Adv. a/w. Mr. Bipin Joshi, Adv. a/w. Ms. Ashwini
Takalkar, Adv. for plaintiffs.
Mr. D D Madon, Sr. Adv. a/w. Naushad Engineer, Counsel a/w.
M. Sangoi, Adv. i/b. Federal & Rashmikant for defendants.
CORAM : MRS. ROSHAN DALVI, J.
DATE OF RESERVING THE ORDER : 24th November, 2014.
DATE OF PRONOUNCING THE ORDER : 04th December, 2014.
O R D E R
1. The plaintiffs who are two trustees of a registered public
trust have taken out this originating summons for putting up certain
questions before this Court as affecting the rights of beneficiaries and
arising in the administration of the estate of the plaintiffs' trust. The
questions are rather unique. The plaintiff would want the Court to
answer :
(a) Whether the sanction to sale the trust property dated 13 th
November, 1979 issued by the Charity Commissioner stands
complied.
(b) Whether the execution of the conveyance without the
simultaneous execution of the lease deed would amount to breach of
the condition of sanction dated 13th November, 1979.
(c) Whether such execution is valid and lawful.
(d) Whether the breach of the order dated 13th November, 1979 can
be remedied and rectified by execution of appropriate lease deed.
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(e) Whether or not the execution of the lease deed will invalidate
conveyance.
and
(f) Whether the trustees are required to take legal proceedings to
recover possession of the trust property from defendant Nos.2 and 3.
2. Under clause 4A of the agreement dated 18 th October,
1978 the sanction of the Charity Commissioner under Section 36 of
the Bombay Public Trust Act, (BPT) was to be taken. Under clause 5
of the said agreement upon the completion of sale the purchaser had
to enter into a lease with the vendors as the trustees of structure
marked 'A'.
The plaintiffs claim that their predecessor-in-title who were
the earlier trustees of the plaintiffs' trust entered into an agreement to
sell the trust property upon the sanction of the Charity Commissioner
and simultaneously upon the sale the purchasers were to lease one
structure marked 'A' on the plan annexed to the said agreement to the
trust.
4. The conveyance deed has been executed on 30 th March,
1982. The lease deed has not been executed till date. If the lease
deed was not executed as required simultaneously with the
conveyance deed the trustees would require to sue the purchasers for
specific performance or for directions to execute the lease deed. The
suit for specific performance would be required to be filed essentially
within three years from 30th March, 1982 since that was the specified
date of the conveyance. The suit would become barred on 30 th March,
1985. That suit has became barred by Law of Limitation. The
plaintiffs contend that pursuant to the agreement between the parties
the Charity Commissioner sanctioned the sale. The sale was
sanctioned in terms of the agreement. Consequently the sanction was
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also subject to the execution of the lease deed. The lease deed has not
been executed and consequently the plaintiffs claim to know whether
order of sanction has been complied or whether the sanction has been
breached and consequently whether sale executed of the deed of
conveyance without the lease deeds would be valid or if not valid it
could be rectified.
5. All these questions would arise at the time of the execution
of the conveyance itself or immediately thereafter. The cause of
action to sue in the execution of the lease deed or to remedy the act
or to obtain a declaration that such execution of the conveyance is not
valid would arise from the date of the conveyance itself. The
questions which are required to be answered would be required to be
answered by the Court if the remedy that the Court may suggest or
opinion that it would give would be legally enforceable. If the
remedy itself is barred the originating summons would be of little
consequence.
6. It would, therefore, have to be seen whether the
originating summons would be barred by the Law of Limitation. It is
an application made to Court under provisions of Chapter XVII of the
High Court Original Side Rules. Under Article 137 of schedule 1 to
the Limitation Act, 1963 in application for which the period of
limitation is not prescribed would require to be taken out within three
years from when the right to apply accrued. The right to apply in this
case accrued at least on the date of the execution of the conveyance if
not before. The plaintiffs should have asked the Court the same
questions within three years of that date. That having not been done
and the remedy in that regard having been seen to be barred by Law
of Limitation, the originating summons would not lie.
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7. The fact that the period of limitation is material to consider
emanates from the observation in the Division Bench of this Court in
the case of Charu K Mehta & Ors. Vs. Lilavati Kirtilal Mehta
Medical Trust & Ors., 2013(1) Bom C R 23. In that case the Court
observed that under Article 137 the originating summons taken out by
the plaintiff in that case would have been barred by Law of
Limitation. The Court observed that that originating summons was
also barred by under Section 80 of the BPT Act. Since it was barred
under that provision the Court did not consider the issue of limitation.
The observation of the Court in paragraph 67 of the judgment shows
that if the bar under Section 80 was not shown the consideration of
the issue of limitation by the learned Single Judge could have been
directed. Upon such observation this Court would require to consider
the issue of limitation which has been considered as above.
8. It is argued on behalf of the defendant Nos.2 and 4 that
this application is also barred by under Section 80 of the BPT Act.
Under Section 80 Civil Court's jurisdiction is barred with regard to
any question by or under the BPT Act which is required to be decided
or dealt with by the Charity Commissioner finally and conclusively.
Mr Madon on behalf of defendant Nos.2 and 3 argued that under
Section 50 (ii) and (iii) of the BPT Act the consent of the Charity
Commissioner is required for any suit which is filed inter-alia to
recover possession of any property from any person or in a suit for the
administration of any public trust.
He would claim that for want of consent of Charity Commissioner
this Court cannot entertain the originating summons. He relied upon
the aforesaid judgment in the case of Charu (Supra) that the Court in
a similar matter held that the originating summons was barred by
Section 80 of the BPT Act. He would argue that question No.6 in this
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originating summons is with regard to the filing of the suit relates to
recovery of possession from defendant Nos. 2 and 3. Without the
consent of the Charity Commissioner under Section 50 r/w. Section
51 of the BPT Act the suit could not be filed. The judgment in the
case of Charu (Supra) holds that such an originating summons would
be barred under Section 80 of the BPT Act. The reading of that
judgment is incorrect. In that case there were several matters arising
before the Assistant Charity Commissioner in change reports in which
the interpretation of deeds of trust was directly in question. Those
matters were disputed and contested and partly heard by Assistant
Charity Commissioner. The change reports would have to be decided
by the Assistant Charity Commissioner finally and conclusively. The
Court would not have any jurisdiction to decide any application with
regard to change reports. The originating summons for interpretation
of deed of trust with regard to the change reports, therefore, would be
barred under Section 80 of the BPT Act. This originating summons is
specifically shown to be taken out for questions arising in the
administration of the trust of the plaintiffs as specifically averred in
paragraph 21 of the summons. A suit required to be filed for recovery
of possession would have to be filed in a Civil Court. Orders and
directions for administration of any public trust may also be given by
the Civil Court. This would only be subject to the Charity
Commissioner's consent / sanction. Under Section 50 or 51 of the
BPT Act, they would not be matters required to be decided by the
Charity Commissioner or any other officer under the Act finally and
conclusively. This is not, therefore, one such matter. The Court's
jurisdiction to otherwise answer question in an originating summons
would not be barred by under Section 80 of BPT Act.
9. However, a originating summons taken out under Rule 238
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would require to be only for questions relating inter-alia to the rights
of beneficiaries and the determination of a question arising for the
administration of the trust. Under Rule 245 of the High Court Original
Side Rules a person claiming under an instrument may apply for
declaration of the rights of such person's interest. The aforesaid
questions in this originating summons also relates to the right to the
beneficiaries of the trust. The declaration of the rights of the
beneficiaries are sought. The originating summons would, therefore,
fall within the latter part of Rule 245.
10. The answers of the questions would be given in a suit for
recovery of possession, if filed. That suit, as aforesaid is seen to be
clearly barred by Law of Limitation.
11. Under Rule 255 of the High Court Original Side Rules the
Court may refuse to pass any order on the originating summons and
dismiss it and refer the parties to a suit in ordinary Courts and make
order for costs of the originating summons. In view of the aforesaid
facts the Court need not answer the questions which would be in the
nature of the opinion of the Court and not the construction of any
instrument though it may be for declaration of the rights of the
beneficiaries save and except stating that the originating summons
should have been taken out so soon as the right to apply for
originating summons accrued and before it was barred.
12. Consequently, originating summons is dismissed.
( ROSHAN DALVI, J. )
