IMPORTANT POINT
The High Court was right in holding that the land in dispute having vested in the tenant by statutory operation of Section 32 of Bombay Tenancy and Agricultural Lands Act, 1948, the creation of trust by erstwhile owner and registration thereof under Section 18 of the Bombay Public Trust Act, 1950 without notice to tenant is not valid in law.

ORDER

This appeal by special leave arises from the judgment of the Division Bench of the Gujarat High Court in L.P.A. No. 10/76 dated July 27, 1979. The undisputed facts are that the Bombay Tenancy & Agricultural Lands, Act, 1948 (for short, the Tenancy Act ) was amended from time to time. The Amendment Act, 1956 had come into force on August 1, 1956. By operation of Section 32 of the Tenancy Act, the tenant has become a deemed purchaser w.e.f. April 1, 1957 which is envisaged by the Act as the "Tillers day". The erstwhile land-holder, the respondent on December 12, 1956 terminated the tenancy of the appellants and filed the Trust deed before the Assistant Charity Commissioner under Section 18 of the Bombay Public Trusts Act, 1950 (Bom. Act XXIX of 1950) (for short, the Act ) for registration. On January 31, 1957, the Trust was registered without any notice to the appellants. Against the said registration, the appellants carried the matter in appeal to the Charity Commissioner under Section 70 of the Act. But the Charity Commissioner by his order dated August 8, 1957 dismissed the appeal holding that "It is difficult to accept this argument". A trust is a mode of transfer known to law and if the legislature really wanted a transfer by way of a trust also to be prohibited, it could have so mentioned. A gift as defined in Section 122 of the Transfer of Property Act "cannot be said to include a trust". Against the said judgment, the appellants filed before the District Judge an appeal on October 4, 1957. The Assistant Judge, Surat in Misc. Appln. No. 64 of 1957 by his order dated August 18, 1967 held that "From the aforesaid comments, it will be seen that a distinction is made about the vesting declaration and it has not been mentioned therein that the vesting declaration would tantamount to a gift." Accordingly, it had confirmed the order of the Assistant Commissioner. The appellants further carried the matter in appeal. The learned single Judge in First Appeal No. 347 of 1968 by judgment and decree dated September 22, 1975 set aside the order and held that the Mamlatdar in his proceedings under Section 32 had held that the appellants became the deemed purchasers by operation of Section 32. The respondent allowed that order to become final. Therefore, the land having been vested in the tenant by statutory operation of Section 32, the creation of the trust and registration thereof under Section 18 of the Act is not valid in law. Further a Letters Patent Appeal was carried and the Division Bench reversed the findings and held that there cannot be a transfer by a single person in his capacity as an individual and at the same time as a trustee beneficiary and that, therefore, it cannot be construed to be a gift under Section 122 of the Transfer of Property Act. The creation of the trust and registration thereof under Section 18 are valid in law. Thus this appeal by special leave has been filed.

2. Since the respondent, though served, had not appeared either through counsel or in person and since an important question of law has arisen, we requested Sri Mukul Mudgal, the learned counsel to assist this Court as amicus curiae and he has rendered valuable assistance by making thorough study and filing written submissions. We record the valuable assistance rendered by him. The question is : whether the creation of the trust on the facts of this case is valid in law ? It is seen that, as found by the learned single Judge of the High Court, pursuant to the proceedings taken under Section 32 declaring that the appellants were the deemed purchasers, they became deemed tenants on Tillers day on April 1, 1957. The order was allowed to become final. Therefore, it binds the respondent, erstwhile owner of the land. The lands stood vested in the appellants. The respondent, thereby got divested his right as owner since the tenant became owner by statutory purchase. The question then is : whether the respondent could create a trust bequeathing the