Trustees of public charitable trusts do not require Charity Commissioner consent to file suits for recovering possession from trespassers, affirming their inherent rights as legal owners.

JUDGMENT :

SANDEEP V. MARNE, J.

1. This Interim Application is filed by Defendant No.1 seeking rejection of Plaint under Order VII, Rule 11(d) of the Code of Civil Procedure, 1908 (the Code).

2. Shri Hari Ashram is a Public Charitable Trust registered under the provisions of Bombay Public Trusts Act, 1950, (BPT Act) as it applies to the State of Gujarat. The Suit is filed by the Trustees on behalf of the Trust. By Indenture of Lease dated 10 September 1962, Jai Hind Co-operative Housing Society Ltd. (Society) granted lease of plot No.6 admeasuring 669.80 square meters bearing City Survey No.580 and being part of land bearing Survey No.70 of Juhu in Juhu Vile Parle Development Scheme, Mumbai Sub-urban District (the plot) for a term of 999 years with effect from 14 March 1962 in favour of Mr. Lalbhai Purushottamdas Shah and others. By Indenture of Assignment dated 6 September 1969, the lease in respect of the plot was assigned and transferred to Mr. Bhailal Chotalal Patel with the consent of the Society. Said Mr. Bhailal Chhotalal Patel constructed building comprising of ground plus three floors on the plot named ‘Usha Villa’. After Mr. Bhailal Chhotalal Patel passed away, his heirs Dr. Peter and Jayantilal inherited the said plot. Under the arrangement between them, Jayantilal was entitled to ground floor, first floor, garage and storage on the ground floor, whereas Dr. Peter was entitled to second and third floors of the building Usha Villa. It is Plaintiff’s case that the Plaintiff-Trust decided to acquire 50% share of Dr. Peter in the plot alongwith construction thereon being second and third floor of the building for consideration of Rs.5 crores. Plaintiff claims that it was informed that the Society did not permit transfer of plot in the name of the Trust and accordingly it was decided to acquire 50% share in the plot and construction thereon in the name of the two trustees of the Trust Sadhu Shree Purushottama Charandasji and Mr. Vithalbhai Somabhai Patel. Accordingly, by registered Deed of Assignment dated 30 July 2012 Dr. Peter assigned 50% of his undivided right, title and interest in the plot alongwith construction being second and third floor of building Usha Villa in favour of the said two Trustees. Shri Jayantilal, the other 50% owner, is confirming party to the said Deed of Assignment.

3. Plaintiff claims exclusive possession of second and third floor of building Usha Villa in pursuance of deed of assignment dated 30 July2012 in addition to joint possession of the plot alongwith Jayantilal. The 50% undivided share in the plot and second and third floor of the Building Usha Villa is referred to as the ‘suit premises’ in the plaint.

4. According to Plaintiff, the religious Head of the Trust used to reside in the suit premises upto Covid-19 pandemic. After relaxation of lock-down restrictions, the said religious Head once again started residing in suit premises but left for heavenly abode on 26 July 2021, after which the suit premises remained vacant. According to Plaintiff, Defendant Nos.1 and 2, who are sons of Jayantilal, illegally took over possession of the suit premises in November 2021. The Plaintiff has accordingly filed present Suit seeking recovery of possession of the suit premises, for recovery of damages of Rs.10,00,000/- and for recovery of mesne profits of Rs.10,00,000/- from Defendant Nos.1 and 2.

5. Defendant No.1 has appeared in the Suit and has filed present Application seeking rejection of Plaint under Order VII, Rule 11(d) of the Code. Plaintiffs have filed Affidavit-in-Reply opposing the Interim Application.

6. Mr. Kapadia, t