Bombay High Court
Mr. Vinayak Vinod Subhash Wadekar vs Vanabai Mankoji Dhone Trust Through ... on 24 September, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:40633
12-SA476-2025+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 476 OF 2025
Vinayak Subhash Wadekar ...Appellant
Versus
Vanabai Mankoji Dhone Trust through its
Trustees ...Respondents
WITH
INTERIM APPLICATION NO. 10821 OF 2025
Mr. Laxmikant Shrimangale, a/w Ambadas Shrimangale, for
the Appellant.
Mr. Drupad Patil, a/w Srushti Chalke, for the Respondent.
CORAM: N. J. JAMADAR, J.
DATED: 24th SEPTEMBER, 2025
Order:-
1. Heard the learned Counsel for the parties.
2. This Second Appeal is directed against a judgment and
decree dated 7th May, 2025 passed by the learned District
Judge, Khed-Rajgurunagar in Appeal No.35 of 2019, whereby
the appeal, preferred by the appellant - original defendant,
SANTOSH
SUBHASH
KULKARNI against a judgment and decree passed by the learned Civil
Judge in Regular Civil Suit No.386 of 2011, came to be
dismissed by affirming the decree for eviction passed against the
defendant.
3. Vanabai Mankoji Dhone Trust, a Public Trust, registered
under the Maharashtra Public Trust Act, 1950 ("the Trust Act,
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1950") is the owner and landlord of the premises bearing House
No.75 situated at Alandi ("the suit premises"). The Trust had let
the suit premises to the defendant on a monthly rent of
Rs.653/-. The defendant committed default in payment of rent.
The Trust decided to terminate the tenancy and, thus, a notice
was issued to the defendant on 5 th December, 2009. As the
defendant failed to comply with the demand therein, the trust
instituted RCS No.386 of 2011, seeking possession of the suit
premises and the arrears of rent.
4. The defendant resisted the suit, inter alia, on the ground
that the suit was not tenable as the Trust had not obtained
prior permission of the Charity Commissioner, as warranted
under Section 51 of the Trust Act, 1950. The suit, at the
instance of few of the trustees only, was not maintainable. In
fact, the termination notice also suffered from the said vice of all
the trustees having not joined in seeking the termination of the
tenancy and recovery of possession of the suit premises.
5. By a judgment and order dated 1st March 2019, the
learned Civil Judge decreed the suit holding inter alia that the
suit was governed by the provisions of Section 106 of the
Transfer of Property Act, 1882; the jural relationship between
the parties was not in dispute; the landlord had validity
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terminated the tenancy by notice dated 5 th December 2009, and
the defendant failed to establish that he had paid the rent. The
learned Civil Judge negatived the challenge to the tenability of
the suit on the ground that the Trust was required to obtain the
prior permission of the Charity Commissioner for the institution
of the suit.
6. Being agreed, the defendant preferred an appeal before the
District Court. By the impugned judgment and order dated 7 th
May, 2025, the learned District Judge dismissed the appeal
concurring with the view of the learned Civil Judge. It was, inter
alia, held that all the requisite conditions for the valid
termination of the tenancy as envisaged by Section 106 of the
Transfer of Property Act, 1882 were fulfilled.
7. Being further aggrieved, the defendant has filed this
Second Appeal.
8. Mr. Shrimangale, the learned Counsel for the appellant,
would urge that both the courts below have committed manifest
error in law in passing the decree of eviction in utter disregard
to the settled legal position that the notice of termination at the
instance of few of the trustees is not legal and valid and the suit
at the instance of few of the trustees only is incompetent.
Amplifying the submission, Mr. Shrimangale would urge that,
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there were in all five trustees. All the trustees did not join in
issuing the notice of termination nor filed the suit. It was urged
that the permission of the Charity Commissioner was also
required for the institution of the suit.
9. In the appeal-memo, two substantial questions of law were
sought to be raised, namely, whether the termination of tenancy
by notice which was issued contrary to the provisions of
Sections 47 and 48 of the Indian Trust Act was legal and valid,
and, whether the suit instituted by the President, Secretary and
one of the trustees only, out of the five trustees, was
maintainable?
10. To buttress the aforesaid submission, Mr. Shrimangale
placed reliance on a judgment of the learned Single Judge of
this Court in the case of Nagar Wachan Mandir, Pandharpur,
through its Chairman, President and another vs. M/s. Akbarali
Abdulhusen and Sons and others1, wherein it was enunciated
that a conjoint reading of Sections 47 and 48 of the Indian Trust
Act would lead to an inference that a suit for eviction, filed by
two trustees only, was not maintainable. Granting of a lease is
the matter which cannot be delegated by trustees and, therefore,
it must follow as a necessary corollary that determination of a
1 1994(2) Bom. C.R. 251.
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lease also cannot be regarded as a matter which can be
delegated by one trustee to another co-trustee or to anyone else.
11. In opposition to this, Mr. Dhrupad Patil, the learned
Counsel for the respondent - plaintiff, would urge that the
controversy sought to be raised is no longer res intergra and is
covered by a Full Bench judgment in the case of Shyamabai
Surajkaran Joshi & ors. vs. Madan Mohan Mandir Sanstha 2. It
was submitted that in the case at hand the decision to
terminate the tenancy was taken by the Trust as is evidenced by
the resolution passed in the meeting of the Trust dated 20 th
July, 2009 and that constitutes sufficient authorization.
12. At the outset, it is necessary to note that the challenge to
the tenability of the suit for want of permission of the Charity
Commissioner under Section 51 of the Trust Act, 1950 need not
detain the Court as the suit for eviction does not fall within the
ambit of the provisions contained in Section 50 of the Trust Act,
1950.
13. The main plank of the submission of Mr. Shrimangale that
in view of the provisions contained in Sections 47 and 48 of the
Indian Trust Act, the notice of termination was required to be
issued by all the trustees of the Trust and the suit was also
2 2010(1) Bom. C.R. 204.
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required to be instituted by all the trustees of the Trust also
seems to be covered by the Full bench judgment of this Court in
the case of Shyamabai Surajkaran Joshi (supra).
14. The Full Bench has, in terms, held that the provisions
contained in Sections 47 and 48 of the Indian Trust Act cannot
be imported to public trust. As regards, the discharge of duties
of their office by their trustees, the Full Bench adverted to the
decision of the Supreme Court in the case of J. P. Srivastava
and Sons Private Limited and others vs. Gwalior Sugar
Company Limited3. wherein the following position in law was
enunciated:
"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.
15. The Full Bench, thereafter, expounded the law as under:
"20. ....... The above observations of the Apex Court clearly
demonstrate that as a general rule, the trustees must execute
duties of their office jointly. 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
3 (2005)1 SCC 172.
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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."
16. In the light of the aforesaid Full Bench judgment and the
judgment of the Supreme Court in the case of Thayarammal
(Dead) By LR vs Kanakammal & Ors4, wherein it was enunciated
that the Indian Trusts Act as clear by its Preamble and contents
is applicable only to private trusts and not to public trusts,
reliance placed by Mr. Shrimangale on the judgment in the case
of Nagar Wachan Mandir (supra) appears to be inapposite.
17. Reverting to the facts of the case, this Court is of the
considered view that the resolution passed by the Trust on 20 th
July, 2009 to terminate the tenancy of the defendant and
initiate action for the recovery of the possession constitutes
sufficient authorization and falls within the ambit of "the
express sanction or approval of the act by the co-trustees";
Clause (2) of paragraph 29 of the judgment in the case of J. P.
Srivastava (supra)) and the said action of issue of notice,
termination of tenancy and institution of suit would also fall
within the ambit of clause (6) of paragraph 29 namely, "where
the co-trustee merely gives effect to a decision taken by the
4 (2005) 1 SCC 457.
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trustees jointly". Indubitably, the resolution was passed by all
the trustees of the Trust.
18. In the aforesaid view of the matter, this Court is unable to
accede to the submission of Mr. Shrimangale that a substantial
question of law arises for the determination in this appeal.
Resultantly the appeal fails.
19. The Second Appeal stands dismissed.
[N. J. JAMADAR, J.]
