( 1 ) THE only point which arises for consideration in this appeal is whether the investment made by the trustee or trustees of Public Trust funds without the permission of the Charity Commissioner otherwise than as provided by sub-sec. (1) of sec. 35 of the Bombay Public Trusts Act 1950 hereinafter referred to as the Act is invalid and void ab-initio? This question has cropped up in this appeal in the following circumstances:

( 2 ) SHAH Dahyabhai Premchand and four others filed a Special Civil Suit No. 47 of 1962 against the present respondents to recover a certain sum of money due from them. In that suit a decree was passed against the present respondents on January 31 1964 The rights of the judgment- creditors under that decree were assigned in favour of the present appell- ants by an assignment deed dated March 25 1968 The appellants are the trustees of Shri Buhari Jain Swetamber Murti Pujak Sang a public Trust registered under the Act. In the execution application No. 36 of 1968 filed for the recovery of the decretal dues of Rs. 5443. 00 by sale of the agricultural lands belonging to the respondents it was contended by the judgment-debtors that the execution was not competent inasmuch as the trustees did not derive any right title or interest under the assignment deed as the trust money was employed for the purchase of the rights of the judgment-creditors under the decree without obtaining the permis- sion of the Charity Commissioner as required by sec. 35 of the Act. The learned Trial Judge upheld this contention and dismissed the Darkhast filed against the present respondents. The appellants having been aggrieved by the said decision of the learned Trial Judge have come in appeal to this Court.

( 3 ) MR. Shelat the learned Advocate for the appellants contended that the view taken by the learned Trial Judge that failure to obtain permi- ssion of the Charity Commissioner before applying the trust fund other- wise than as provided by sub-sec. (1) of sec. 35 of the Act renders the transaction invalid and void is not correct. The relevant part of sec. 35 of the Act provides as under:35 Where the trust property consists of money and cannot be applied immedi ately or at any early date to the purposes of the public trust the trustee shall be bound (notwithstanding any direction contained in the instrument of the trust) to deposit the money in any Scheduled Bank as defined in the Reserve Bank of India Act 1934 in the Postal Savings Bank or in a Co-operative Bank approved by the State Government for the purpose or to invest it in public securities. Provided that such money may be invested in the first mortgage of immovable property situate in any part of India if the property is not leasehold for a term of years and the value of the property exceeds by one half the mortgage money:provided further that the Charity Commissioner may by general or special order permit the trustee of any public trust or classes of such trusts to invest the money in any other manner. We are not concerned with sub-sec. (2) of sec. 35 of the Act in this case. It will appear on a plain reading of sub-sec. (1) of sec. 35 that where a trust property consists of money and cannot be applied immedi- ately or at any early date to the purposes of the public trust the trustees are enjoined upon regardless of the direction contained in the instrument of trust to deposit the money in any Scheduled Bank in the Postal Savings Bank or in a Co-operative Bank approved by the State Govern- ment or in public securities. This sub-section clearly casts a duty on the trustees to invest the trust money which cannot be immediately or at an early date applied to the purposes of the public trust in the manner set out therein. The first proviso to sub-sec. (1) of sec. 35 however permits the trustees to invest the trust money in the first mortgage of immovable property provided the mortgaged property is not leasehold and the amount invested does not exceed one half