Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

Bombay High Court

Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013
Bench: S.B. Shukre
sa116.98.odt

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.

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 1

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

R/o. Hyderabad. : APPELL

...VERSUS...

Madan Mohan Mandir Sanstha,

a public Trust by Trustee Bhaiji

Kanji Ganatra,
Aged about 65 Years,
R/o. Khamgaon, Tah. Khamgaon,
District : Buldhana. : RESPO

::: Downloaded on - 27/1

sa116.98.odt

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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 :

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 2

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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
sa116.98.odt 3/32 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
sa116.98.odt 4/32 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, sa116.98.odt 5/32 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 ?

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 3

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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 sa116.98.odt
6/32 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 sa116.98.odt 7/32 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 :

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 4

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

(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 sa116.98.odt 8/32 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 sa116.98.odt 9/32 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 sa116.98.odt 10/32 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.

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 5

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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 sa116.98.odt 11/32 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 sa116.98.odt 12/32 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 sa116.98.odt 13/32 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.

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 6

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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 sa116.98.odt 14/32 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 sa116.98.odt 15/32 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 sa116.98.odt 16/32 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 :-

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 7

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

"..........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.

sa116.98.odt 17/32 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
sa116.98.odt 18/32 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.

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 8

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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 sa116.98.odt 19/32 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 sa116.98.odt
20/32 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 sa116.98.odt 21/32 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

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 9

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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.

sa116.98.odt 22/32 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 sa116.98.odt 23/32 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

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 10

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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.

sa116.98.odt 24/32 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
sa116.98.odt 25/32 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 sa116.98.odt 26/32 (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

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 11

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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 sa116.98.odt 27/32 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 sa116.98.odt 28/32 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.

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 12

 Shyamabai W vs Madan Mohan Mandir Sanstha on 22 October, 2013

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 sa116.98.odt 30/32 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 sa116.98.odt 31/32 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 sa116.98.odt 32/32 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 dww

Indian Kanoon - http://indiankanoon.org/doc/181649090/ 13