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2006 Supreme(Bom) 178
IN THE HIGH COURT OF BOMBAY
LAKHANLAL s/o BRIJLAL PUROHIT
Versus
MARWADI SAMSHAN HANUMAN MANDIR, AKOT
Decided on, FEBRUARY 8, 2006
Headnote:Practice and Procedure - Filing of suit in the name of trust through trustee treating the Trust as an independent legal entity - Such practice ignores the position in law that a trust is an obligation annexed to a property.
Bombay Public Trusts Act, 1950 - Sections 79 and 80 Civil Procedure Code, Section 9A Trustee filing suit claiming that property in question belonged to the trust and a declaration that the defendants were not entitled to transfer the said property Only if question that said property belonged to the trust was answered in its favour that the declaration as sought could be granted by the Court Suit therefore involved a question that was liable to be determined under Section 79 of the Bombay Public Trusts Act, 1950 and therefore bar of Section 80 of the said Act was attracted Suit held to be barred by Section 80 of the Act. A trustee of a trust filed suit for declaration that the suit property was owned by the trust and that the defendants, who claimed title to the said property on the basis of a saledeed executed in their favour by the alleged tenant of the trust, had no right to alienate the same. The defendants filed an application under Section 9-A of the Code of Civil Procedure contending that the jurisdiction of the Civil Court was barred in view of the provisions of Section 80 of the Bombay Public Trusts Act, 1950. The trial Court r ejected the said application. In revision application challenging the said order.
Held, that though prayer in the suit was for a declaration that the defendants had no right to transfer or execute a sale-deed or hand over possession of any portion of the suit filed, on reading the plaint as a whole, it was clear that in substance it was the basic assertion of the plaintiff that the property belonged to the trust the therefore the defendants could not alienate it. Only if the said question was decided in favour of the plaintiff, that the declaration sought by them could be granted by the Court. The suit therefore involved the question as to whether the suit property belonged to the public trust or not. As the suit involved the question that was liable to be determined under Section 79 of the Bombay Public Trusts Act, the suit was barred by Section 80 of the said Act. The order passed by the trial Court rejecting the application under Section 9-A of Code of Civil Procedure set aside with liberty to the trust to approach of authority under Section 79 of the Bombay Trusts Act, 1950.
Civil Procedure Code, 1908 - Section 9-C Bombay Public Trust Act, 1950, Sections 50 and 80 Sale of trust property Suit by trustee in Civil Court Objected City Commissioner’s permission not taken Pleadings do not indicate trust property is of trust or vests in a trustee Suit clearly involves whether suit property belongs to respondent-trust or not Apex Court decision indicates non applicant can approach Court of appropriate jurisdiction. There is the respondent who claims to be the owner of the property and the applicants who said to have acquired a valid title from Rukhmanibai the vendor. A reading of the plaint itself reveals that the matter involves a Trust property. In the same decision their Lordship has observed in paragraph No. 83 as follows :
With a view to determine the question as regards exclusion of jurisdiction of the Civil Court in terms of the provisions of the Act, the Court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the Court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the Civil Court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions where with a Court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred.
The observations clearly apply to the present case. In this view of the matter the Civil Revision Application succeeds. The impugned order is hereby set aside.
( 2 ) THE non-applicant/respondent is the President of Public Trust known as marwadi Samshan Hanuman Mandir, Akot. As is the usual erroneous practice in such matters, the respondent has filed the suit in the name of the Trust i. e. Marwadi Samshan Hanuman Mandir, Akot through himself i. e. the Trustee, as if a Trust is an independent legal entity. The practice ignores the position in law that a Trust is an obligation annexed to a properties.
( 3 ) ON a reading of the plaint it is clear that the non-applicant claims to be owner of 2 Hectares and 47 R and has sought a declaration against the applicants. The declaration is to the effect that the applicants have no right or title to transfer or to execute any sale-deed of the suit land without permission of the Collector. The case made out in the plaint, is that the land is held by a registered public trust. The trust had a tenant called Rukhmanibai. The tenant failed in compulsorily purchasing the suit land and executed the sale-deed on 30-4-1990 in favour of the applicants. According to the respondent a tenant had no right to execute the sale-deed in favour of the applicants. The applicants therefore have no title to the suit land and therefore they are not entitled to sell the suit land to any third party. In this suit which was filed in the usual way as Regular Civil Suit before the Civil Judge Junior Division, Akot the applicants applied under section 9-A contending that the suit is not tenable for want of permission from the charity Commissioner under section 50 of the Bombay Public Trusts Act and on the ground that the Civil Court has no jurisdiction by virtue of section 80 of the act. This application has been rejected cryptically by the learned Civil Judge junior Division on the ground that section 50 has no application since the respondent-Trust is suing for its right to certain property and the present suit is not concerned with the Trust. Especially, the order suffers from a non-application of mind as it observes that the suit has no concern with the respondent-Trust. There is no reason given why and it is difficult to imagine any. The learned Civil judge Junior Division has left objection under section 80 undecided.
( 4 ) SHRI Atul Chandurkar, the learned Counsel for the applicants submitted that the Civil Court before whom the suit is filed does not have jurisdiction in view of section 80 of the Bombay Public Trusts Act.
( 5 ) ACCORDING to the learned Counsel the suit involves a question whether a particular property is the property of respondent-Trust, which is a matter which is required to be decided by the Deputy or Assistant Charity Commissioner or charity Commissioner in appeal.
( 6 ) MR. Thakkar the learned Counsel for the respondent on the other hand submitted that the suit is clearly one within the purview of section 50 and Clause (d), this being a suit to obtain a decree for vesting of the suit property in a Trust and therefore, it is covered by section 50, Clause (d ).
( 7 ) HAVING considered the matter it seems that the submission on behalf of the applicants needs to be accepted.
( 8 ) SECTION 80 reads as follows :-"save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this act to be decided or dealt with by any officer or authority under this Act, (and in respect of) which the decision or order of such officer or authority has b
