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In the High Court of Bombay at Nagpur
THE HONOURABLE CHIEF JUSTICE MR. SWATANTER KUMAR, THE HONOURABLE MR. JUSTICE D.D. SINHA & THE HONOURABLE MR. JUSTICE P.B. VARALE
Shyamabai wd/o Surajkaran Joshi & Others
Versus
Madan Mohan Mandir Sanstha & Others
Second Appeal No.116 of 1998 Writ Petition No.3749 of 2008
Decided on : 10-12-2009
"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. 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 Court by Justice CL Pangarkar will have to be decided by the learned Single Judge on the facts and circumstances of the case.
So far as the third question referred to the Full Bench by Justice CL Pangarkar is concerned, counsel for the petitioner, submitted that the petitioner is a public trust and not the Society registered under the societies Registration Act, 1860 and therefore, question of application of Section 6 of the Societies Registration Act 1860 does not arise. A society registered under the Societies Registration Act, 1860 is governed by the provisions of Societies Registration Act, 1860 for all practical purposes. Society formed either for religious or charitable purposes or for both and registered under the Sections Registration Act, 1860 which is included in the definition of "public trust" under Section 2(13) of the Bombay Public Trusts Act 1950 will come within the ambit of term "public trust" only after it has received a certificate of registration under Rule 8 of the Bombay Public Trusts Rules, 1951. Once it receives a Certificate under Rule 8, then such Society gets a status of public trust for all practical purposes.
In view of the contentions canvassed by counsel for the petitioner, question whether by virtue of public trust being a society, a suit for recovery of property at the instance of Chairman, President or Secretary of the public trust alone is maintainable under Section 6 of the Societies Registration Act, 1860 does not arise for consideration before the learned Single Judge nor there is any conflict of opinion expressed in this regard by other learned Single Judges.
Court answer the references in the above terms. The record and proceedings be remitted back to the learned Single Judge for disposal of the second appeal and writ petition accordingly.
Based on the provided legal document, the key points can be summarized as follows:
The Bombay Public Trusts Act, 1950, has specific provisions for public trusts, and the inclusion of societies registered under the Societies Registration Act, 1860, within the definition of public trusts does not automatically confer the status of a public trust unless certain registration conditions are met (!) (!) .
Registration and Legal Status of Public Trusts:
The second part of the definition of "public trust" in the relevant legislation pertains to societies registered under the Societies Registration Act, 1860, but this is distinct from the first part, which defines a public trust for regulatory purposes (!) (!) .
Delegation of Trustee Powers:
Trustees are generally required to execute their duties jointly. However, exceptions exist where delegation is permitted, such as when the trust deed allows it, with the approval of co-trustees, or in the regular course of business. The decision to act can sometimes be delegated to one trustee under specific circumstances (!) (!) .
Suit for Recovery and Legal Proceedings:
Proceedings for recovery of property or eviction initiated by a trustee or a trustee’s authorized representative are subject to the applicable laws governing trusts and trusts-related actions. The authority of individual trustees to institute such proceedings depends on the legal framework applicable to the trust, whether private or public (!) (!) .
Legal Interpretation and Legislative Intent:
The legislative device of incorporation versus mere reference is crucial; provisions incorporated into a statute become part of that legislation, whereas references do not automatically carry the same legal effect unless explicitly adopted (!) (!) .
Jurisdiction and Court Proceedings:
The legal proceedings involving public trusts, including suits for recovery or eviction, are to be decided based on the specific statutory provisions applicable to the nature of the trust and the manner of its registration. The courts are to interpret the applicable laws without overextending the applicability of laws designed for private trusts (!) (!) .
Supreme Court and High Court Principles:
These points collectively clarify the legal framework governing public and private trusts, emphasizing the importance of proper registration, legislative intent, and the limits of statutory applicability.
D.D. Sinha, J.
Heard Shri Gilda, learned Counsel for the appellants, and Shri Mohta, learned Counsel for the respondent in Second Appeal No.116/1998, as well as Shri Gordey, learned Counsel for the petitioner and Shri Chopde, learned Counsel for the respondents in Writ Petition No. 3749/2008.
2) Justice A.B. Chaudhari in view of conflicting decisions of the learned Single Judges of this Court in the writ petitions thought it appropriate to refer the controversy in issue to the larger Bench and, therefore, vide order dated 6.8.2009 passed in Second Appeal No.116/1998 referred the following questions for determination to the Full Bench:
(i) Whether Sections 47 and 48 of the Indian Trusts Act, 1882 are applicable to a Public 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 registration of a public trust, in addition, under the Societies Registration Act, the provisions of Societies Act and Section 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?”
Similarly, Justice C.L. Pangarkar, in view of conflicting decisions, also referred following issues to the larger Bench for determination:
“(1) 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?
(2) Whether therefore a suit instituted by one of the trustees for possession would be maintainable?
(3) Whether by virtue of public trust 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?”
3) So far as reference made by Justice A.B. Chaudhari in second appeal as well as Justice C.L. Pangarkar in writ petition is concerned, the Trusts in question are the “Public Trusts” registered under the Bombay Public Trusts Act, 1950 and are not the Societies formed either for religious or charitable purpose or for both and are not registered under the Societies Registration Act, 1860.
4) The issues involved in both these references are related to questions of law and, therefore, Shri Gilda and Shri Gordey, learned Counsel for the appellants and petitioner, and Shri Mohta and Shri Chopde, learned Counsel for the respondents, advanced arguments on the legal aspects of the matters, which are, in nutshell, as follows:
The learned Counsel for the appellants and petitioner contended that in view of decision of the Apex Court in Thayarammal (dead) by L.R. v. Kanakammal and others {(2005) 1 SCC 457} and decision of the Division Bench of this Court in Controller of Estate Duty v. Mangala (1982 Mh.L.J. 686) as well as another decision of this Court in Sarda Education Trust vs. Mukund Rambhau Pinjarkar and others (2008 (2) Mh.L.J. 395), the provisions of the Indian Trusts Act, 1882 in general and Sections 47 and 48 in particular are not applicable to the public trusts. It was submitted by the learned Counsel for the appellants and petitioner that so far as question whether public trust being a society, a suit for recovery of property at the instance of Chairman, President or Secretary of the public trust alone is maintainable under Section 6 of the Societies Registration Act, 1860 is concerned, the trusts in question are the public trusts registered under the Bombay Public Trusts Act, 1950 and are not the societies registered under the Societies Registration Act, 1860 and, therefore, question of applicability of Section 6 of the Societies Registration Act, 1860 does not arise. Shri Mohta and Shri Chopde, learned Counsel for the respondents, contended that decision of the Apex Court in the case of Thayarammal (cited supra) is not the law la
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