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TMI Blog1966 (11) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... for worship of the idol and at that time the person who arranged it was the priest Rangachari Ramanujachari. The temple followed the Ramanuja Sampradaya and in that persuasion it appears that there are two sects, the Tingle sect sect and the Badgal sect. Shri Rangachari belonged to the Tingle sect sect. Thereafter the history of this temple is somewhat obscure, but it appears that one Ganeshram Somani was its manager. Ganeshram Somani died in 1930 and was succeeded by Raghunathdas his son. Raghunathdas died in 1947 and was succeeded by Narsinghdas. Till this date it appears that there were really no disputes and that Narsinghdas Somani was a man of the confidence of the entire Sampradaya. 3. On August. 14, 1950, however, there came into force the Bombay Public Trusts Act, (Act XXIX of 1950), and that Act required that all public trusts must be registered by the trustees of the public trusts (vide Section 18). Accordingly, three applications for registration came to be filed before the Assistant Charity Commissioner and they were application No. 3/2485 of 1952 presented by Narsinghdas Somani, No. 3/3601 of 1952 presented by Sukhdev Raghunath singh and Vithaldas Badridas Bhattad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Motilal Ramnarayan who appealed against the finding that the trust was a public trust. On the part of the other parties two other appeals came to be filed, appeal No. 133 of 1954 by Sukhdev Raghunath singh and Vithaldas Badridas Bhatad disputing the right of the Somani to be trustees and a counter appeal No. 145 of 1964 filed by Narsingdas Ganeshram Somani disputing that the plaintiffs had no right to be trustees. The Charity Commissioner who disposed of all these matters by a common order dismissed the appeal of Motilal and confirmed the finding of the Assistant Charity Commissioner that the temple and its properties constituted a public trust and, therefore, Motilal had no right to any part of the properties nor any right against the same. 6. As regards the other two appeals the Charity Commissioner discussed the question as to who were entitled to be the trustees of this public trust and came to the conclusion that upon the evidence it was not possible for him to find who had the legal right to be trustees, that is to say to be do jure trustees. But then the Charity Commissioner observed that there was no doubt from the evidence that various persons had in fact acted as tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e properties of the trust and actual possession of movable properties or in the alternative a decree for the amount of the price of the movable property. They also claimed damages of Rs. 1,000 from the defendants, for wrongfully depriving the plaintiffs of possession and management, and a declaration that none of the defendants are entitled to manage the trust properties and a permanent injunction against them prohibiting them from management or being in possession of the trust properties. The suit was filed in forma pauperis because the plaintiffs alleged that they had nothing with them belonging to the trust and were, therefore, not in a position to pay the Court fees. The plaintiffs claimed to file the suit in their1 capacity as trustees alleging that the trust properties had vested in them and they were entitled to their possession. They alleged that defendants No, 1 and 2 had illegally taken possession of the trust properties and started using and converting the properties of the trust and intermeddling with it. Defendant No. 3 was joined because he was a cousin of defendant No. 2 and defendant No. 4 was joined because he was the younger brother of defendant No. 1. It was alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay Public Trusts Act and he has urged that the present plaintiffs could not have filed the suit without the consent of the Charity Commissioner under that section. Secondly, he has urged that the plaintiffs have not based their suit upon any title whatever but all that they have claimed is that they were de facto trustees and recognised as such by the Charity Commissioner. Thus they have filed the suit only as de facto trustees. If so, they cannot file the suit because they have admitted in the suit that they have not been in possession of any part of the trust property. He has urged that the plaintiffs who claim to be de facto trustees will have no locus standi to sue since they admit that they are not in possession of any part of the trust properties. These are the only two points urged in First Appeal No. 573 of 1963 on the basis of which Mr. Venkat Varadachari has urged that the plaintiffs' suit should have been dismissed.... 13. Turning to the point raised by Mr. Varadachari, Section 50 of the Bombay Public Trusts Act makes special provisions analogous to the provisions of Section 92 of the Code of Civil Procedure in regard to suits relating to public trusts. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means , but by the Bombay Act XXVIII of 1953 the sub-section was amended and instead of the word means the word includes is now substituted with the result that the trustee would be included because he would necessarily be included in the ordinary acceptance of the words Person having interest . 15. The latter construction of the section was disputed on behalf of the respondents and reliance was placed upon a decision of a single Judge of this Court in Khemchand v. Parmanand (1961) 64 Bom. L.R. 235, where Datar J. held that the expression person having an interest in Section 2(10) of the Bombay Public Trusts Act, 1950, does not include a trustee. That decision was given under the definition as it stood after amendment by the Bombay Act XXVIII of 1953, but the learned Judge did not notice the difference that has been brought about by substituting the word includes for the word means , for at page 237 he observed: The expression 'trustee' has been defined in the Bombay Public Trusts Act. It means; 'a person in whom either alone' or in association with other persons, the trust property vested and includes a manager. In view of this change in the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty of the trust. The question is whether having: regard to the purpose and object of the section, it was intended to bar every other suit which a trustee could undoubtedly bring as the legal owner of the property unless the conditions of Section 50 are fulfilled, In our opinion, that was not the intention behind Section 50. 17. Normally a trustee as the legal owner of the trust properties has all the rights inherent in a natural owner of property and can sue to recover trust property. That right we do not think was. at all intended to be affected by the provisions of Section 50. But what Section 50 purported to do was to confer upon two or more persons interested in trust property, not necessarily the trustee, the right to move to protect the trust property in the event of the trustees failing to do so. The provisions of Section 92 of the Code of Civil Procedure are analogous to the provisions of Section 50 and prior to the present Code of Civil Procedure, the relevant section in the old Code of Civil Procedure (Act XIV of 1882), was Section 539. The separate right of a trustee de hors the provisions of Section 539 to file a suit for the protection of trust properties was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llai's case was affirmed by a Full Bench of the Madras High Court in Tirumalai Devasthanams v. Krishnayya. A.I.R [1943] .Mad. 466. It was observed at page 469 as follows: After hearing the arguments of learned Counsel in the present case we can see no reason for disagreeing with anything said in Shanmukham Chetty v. Govinda Chetty (1938) Mad. 39. On the other hand we find ourselves in full agreement with the opinion of Varadachariar J. that in deciding whether a suit falls within Section 92 the Court must, go beyond the reliefs and have., regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit is brought....The trustees of the Tirupati temple, qua trustees, have the right of recovering from the trustees of the temple at Moolki moneys which those trustees have collected on behalf of the Tirupati temple and this right is entirely independent of Section 92....The plaintiffs are not seeking to control the manner of collection or the duties of the respondents which are peculiarly theirs. They are merely seeking to get from the respondents what the respondents hold on behalf of the plaintiffs. In these circumstances, we consider that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that claims by trustees against persons, who are strangers to the trust and who set up a title hostile thereto, such as alienees and mere trespassers holding adversely thereto, are not within the section. In Vishvanath Govind Deshmane v. Rambhat I.L.R. (1890) 15 Bom. 148, the same view was taken, in a case where the trustee was suing persons who were not at all entitled to the property sued for and it was held that the case was not covered by Section 92. See also Kashinath v. Ganguhai. (1930)32BOMLR1687 . 20. Considerable stress was laid by Mr. Varadachari upon the first proviso to Section 50 which says that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof, It seems to us that the proviso must be read in the light of the totality of the provisions of Section 50 itself. It is a settled rule of construction that the proviso to a section cannot enlarge its scope and that its proper function is merely to carve out an exception from the general rule laid down in the section. What Mr. Varadachari argues is that having regard to this proviso if a suit is filed in which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the suit fell within the scope of Section 92. That was not a suit like the present one where the trustees are suing complete strangers or persons without any right, title or interest. It was specifically held in that case that Section 92 applied because the defendants were not in the position of strangers but were trustees and claimed as such to be entitled to hold the lands from generation to generation subject to the due fulfilment of the trust. At p. 751 Mr. Justice Shah pointed out: ...Taking the plaint as a whole, it seems to me that it is a suit for the removal of the defendants from their position as trustees, for the restoration of the trust property to the plaintiff as the Muktesar appointed by the Temple Committee, for taking accounts, and for damages for their wrongful acts as trustees, Such a suit would be clearly within the scope of Section 93 of the Code. He further went on to say : This is not a suit against strangers as contended by Mr. Murdeshwar. It is not necessary to refer to the decisions cited by him. The question is whether in the present suit the defendants are in the position of strangers. In my opinion they are not. They are really trustees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the trust property, started using or converting the receipts belonging to the trust and intermeddling with it. The suggestion in this averment undoubtedly is that the plaintiffs were in joint possession so long as Narsingdas was alive, because they say He (Narsingdas) also managed the trust during his life time illegally . Be that as it may, however the allegations of the plaintiffs are undoubtedly very vague in this respect and, therefore, we will assume as Mr. Varadachari desires it to be assumed that there is no allegation that the plaintiffs were in possession of any part of the Immovable or moveable property of the trust: This is especially so, since in para. 12 in showing cause why they are entitled to sue in forma pauperis they have made a somewhat damaging statement that they do not possess any assets of the trust with them and that they have nothing with them belonging to the trust. The question is whether even so and upon the plain allegations the plaintiffs could not have sued the defendants in the suit for return of the temple property. 24. It is an important circumstance that the plaintiffs were recognised as trustees not only by the Assistant Charity Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is vested for the time being, that is to say, persons who would be legally in possession thereof as against having title thereto. But apart from that the definition includes a manager . In other words, a person who is a manager or is somehow connected with the management of the trust is himself the trustee. In view of this artificial definition of the word trustee in the Bombay Public Trusts Act we can see nothing wrong in the finding of the Charity Commissioner and of the Assistant Judge that the plaintiffs were trustees. 27. Mr. Varadachari sought to meet this, argument by further pointing to the definition of manager in Section 2(8) of the Act where manager is defined as meaning any person (other than a trustee) who for the time being either alone or in association with some other person or persons administers the trust property of any public trust and includes... (with the rest of the definition we are not here concerned). What Mr. Varadachari has emphasised is the expression for the time being . He urges that if the plaintiffs were trustees because of the definition in Section 2(18) which includes a manager , then manager means any person who for the time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention was that the plaintiff would be entitled to maintain the suit if the plaintiff could prove that it was in possession and management of the temple and its other properties and, therefore, was its tie facto trustee (vide para, 11 of the judgment of Chief Justice Rajamannar). Mr. Varadachari, therefore, strongly relied upon this decision to urge that in order that a person may be a de facto trustee and be entitled to maintain a suit for possession of trust properties, he must be in possession and management of the temple and its properties. No doubt upon the particular facts of that case the Full Bench held that that ought to be found before the plaintiff could sue, but if one turns to the body of the judgment one finds that the view which the Full Bench accepted was that it was not necessary that there must be any title inherent in a trustee before he can sue. In fact at page 722, Chief Justice Rajamannar prefaced his whole judgment with the remark It will be seen from an examination of some of the decided cases that the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or interest. The trial Judge has held them to be trespassers-a finding with which we entirely agree. As between the plaintiffs and the defendants it is the plaintiffs who at least have a right as de facto trustees and in the words of Wadsworth J. it would be a monstrous thing if such persons recognised as being in charge of the trust property should not be entitled, in the absence of any one with a better title, to take those actions which are necessary to safeguard the objects of the trust. 30. Another decision relied upon was Harilal Ranchhod v. Gordhan Keshav. I.L.R (1927) 51 Bom. 1040, 29 Bom. L.R. 1414. That, however, was a case where a separated uncle of a Hindu minor who had never acted as a guardian of the minor was held not entitled as a guardian de facto to sell property on behalf of the minor. In the first place that is not a case pertaining to a trust or trust property and in the second place in that case the person who claimed to be de facto guardian had absolutely no connection whatever with the property of the minor prior to the time when he claimed to sell it. Therefore, it was held that he could not be a de facto guardian. That is not the position here. The plai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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