Full Judgment Text
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PETITIONER:
GOLLALESHWAR DEV AND ORS.
Vs.
RESPONDENT:
GANGAWWA KOM SHANTAYYA MATH & ORS.
DATE OF JUDGMENT15/10/1985
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
MADON, D.P.
CITATION:
1986 AIR 231 1985 SCR Supl. (3) 646
1985 SCC (4) 393 1985 SCALE (2)811
ACT:
Bombay Public Trust Act, 1950, sections 2(10), 50, 51
and 52(i) read with section 92 of Code of Civil Procedure,
1908, scope of -Whether two or more trustees of a registered
public trust can with the permission in writing of the
Charity Commissioner, bring a suit for declaration that
certain property belongs to the public trust and for
possession of the same from a person holding it adversely to
the trust - Words and phrases "Meaning of the phrase ’person
having interest in the trust occurring in section 2(10) of
the Act - Persons having interest includes trustees and
other beneficiaries -
HEADNOTE:
The first appellant Gollaleshwar Dev is an ancient
temple situate in village Golgeri in the district of Bijapur
which formed part of the erstwhile State of Bombay prior to
the reorganisation of the States. Consequent upon the
enactment of the Bombay Public Trust Act, 1950, the temple
was registered as a public trust. The district of Bijapur
became part of the new State of Karnataka on the appointed
day i. e. November 1st, 1956 under the States Reorganisation
Act, 1956. The Bombay Public Trust Act continued to remain
in force in the areas which formed part of the erstwhile
State of Bombay. Appellant No.2 is the present trustee of
the temple and appellant No. 3 the grandson of ex-trustee
Mariyappa the elder brother of appellant No.2 is a
beneficiary.
it had been customary for the trustees to permit
persons rendering services to the temple to reside in suit
premises on leave and license basis. The respondents
Shantayya and Smt. Shankarawa, who were taken in the
service of the temple and allowed to reside in the suit
premises free of rent on condition that they were to occupy
the said premises so long as their services to the temple
were required, started creating trouble in the year 1957
with the result the father of appellant No.2 terminated
their services and asked them to vacate the suit premises.
On their failure to do so, he brought two suits being Civil
Suits Nos. 244 and 255 of 1937 in the name of the idol Shree
Gollaleshwar Dev as plaintiff No.1 with himself being
647
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trustee as plaintiff No. 2. The respondents contested the
claim on various grounds and pleaded inter alia, (i) that
the temple had no right to title to the suit premises which
belonged to them by virtue of a registered gift deed dated
February 19, 1917 executed by Mariyappa Lingappa the
grandfather of appellant No. 3 in favour of their
Predecessor-in- title Balalochanayya Hiremath, the first
license of the suit premises; (ii) that the suits brought
under section 50 (11) of the Act were not maintainable for
want of consent in writing given by Charity Commissioner
under section 51; ant (iii) that the Court of the Civil
Judge, Senior Division, Bijapur had no jurisdiction to
entertain the suits. The suits Mysore High Court in
Marikamba Temple and Hanumant Temple, Sirsi, by its
Manager, S.S. Dhakappa v. Subraya Venkataramanappa Barkur
reported in I.L.R. 1958 Mysore 736. Thereafter a Fresh Civil
suit No. 2 of 1962 was instituted before the District Judge
Bijapur after obtaining the consent in writing of the
Charity Commissioner by the appellant No. 2’s father as
plaintiff No. 2 and the idol as plaintiff No. 1. Later
Appellant No. 3 in the capacity of a beneficiary and
Appellant No. 2 in the capacity of the present trustee were
impleaded as plaintiffs Nos. 2 and 3 as "persons interested
in the trust." The High Court in the meanwhile had reversed
the decision in Marikamba’s case in Ganapathi Ram Naik &
ANR. V. Kusta Shri Venkataraman Dev in 1964 I Mysore LJ
172. Following the said D.B. decision in the District Judge
held that, although a suit for recovery of property
belonging to the idol could be brought either by the idol
represented by section 50 (ii) of the act and was
therefore not maintainable and that such a suit would be a
governed by the ordinary law and would not lie in the
District Court, but either in the Court of the Civil Judge
, Junior Division or the court of the Civil Judge, Senior
Division according to the valuation of the subject matter of
the suit." Aggrieved by the said Judgment the appellants
preferred an appeal before the High Court. A Division
Bench which heard the appeal felt that the decision in
Ganapathi Ram’s case required reconsideration and referred
the matter for the opinion of the Full Bench. The Full
Bench upon the hypothesis that section 50 of the Act is in
pari materia with section 92 of the Code of Civil Procedure
expressed that the well- settled principles governing
section 92 of the Code are equally applicable to section 50
of the Act. It accordingly held: (1) that the suit
contemplated by section 50 of the Act was one of a
representative character; (ii) that a suit by a deity for
possession being a suit for vindicating its own personal
rights
648
was not governed by section 50 of the Act that persons who
institute suits in their capacity as trustees do so not in
their representative capacity representing the interests of
the public but in their own individual or personal capacity
to vindicate their own rights or that of the idol that is to
say, merely because trustees . were persons having interest
in the trust the provision of section 50(ii) of the Act
would not be attracted to a suit of this kind. Upon that
view the full Bench answered the question referred to it as
follows: (i) the expression "persons having interest in the
trust" occurring in section 2(10) and section 50 of the Act
does not include the trustees when they institute the
suits in their capacity as trustees for vindicating their
private rights; and (ii) consequently two or more trustees
or a public trust cannot file a suit under section 50(11) of
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the Act for a declaration that the property belongs to the
public trust and for possession of the same from a person
holding it adversely to the trust. In accordance with the
opinion of the Full Bench, the Division Bench dismissed the
appeal filed by the appellants. Hence the appeal by special
leave.
Allowing the appeal, the Court
^
HELD : 1.1 The expression "person having interest" in a
trust occurring in section 2(10) and section 50 of the
Bombay Public Trust Act cannot be given a restrictive
construction. The definition of the expression "person
having interest" in section - 2 (10) being an inclusive
one, there is no Lawful justification to exclude the suit
brought by two or more trustees in the name of the idol, to
recover possession of its property against a person holding
it adversely to the trust from the purview of section 50(ii)
of the Act. The definition of the words person having
interest" in section 2 (10) of the Bombay Public Trust Act,
as amended in 1953 was made inclusive to set at rest all
doubts and difficulties as to the meaning of these words,
which were intended and meant to be used in a generic sense
so as to include not only the trustees but also the
beneficiaries and other persons interested in the trust.
The definition of the expression person having interest in
section 2(10) is wide enough to include not merely the
beneficiaries of a temple, math, wakf etc. but also the
trustees. Therefore appellants Nos. 2 and 3 who undoubtedly
are members of the founder’s family i.e. beneficiaries, are
entitled to attend at performance of worship or service in
the Distribution of offering to the also
entitled to partake in the distribution of offering to the
deity and thus answer the description "person having
inter" as defined in Section 2 (10) of the Act. [657A-D;
660 A-B]
649
1.2 Provisions contained in sections 50 to 52 of the
Bombay by Trust Act make it clear that the Act created and
regulated a right to institute a suit by the Charity
Commissioner or by two or more persons interested in the
trust, in the form of supplementary statutory provisions
without defeasance of the right of manager or a trustee or
a shebait of an idol to bring suit in the use idol to
recover the property of the trust in the usual way.
Further, although although sub-section (1) of section 52
makes sections 92 and 93 of the Code of Civil Procedure
inapplicable to public trust registered under the Act, it
has made provision by section 50 for institution of such
suits the Charity Commissioner or by two or more persons
interested in the trust and having obtained the contest in
writing of the Charity Commissioner under section 50 of
the Act. Therefore, any two or more persons interested in
the trust should not deprived of the right to bring a suit
as contemplated by section 50 (ii) (a) of the Act. 1658 D-
F]
1.3 section 50 of the Bombay Trust Act is not in pari
materia with section 92 of the Code of Civil Procedure.
Although section 50 of the Act is structured upon the
pattern of section 92 of the Code of Civil Procedure, there
is no provision in section 92 of the Code analogous to
clause (ii) or relief (a ) of section 50 of the Act.
Section 50 authorises the institution of a suit by the
Charity Commissioner or two or more persons interested in
the trust only in the District Court having jurisdiction to
try it. The scope of section 50 of the Act is wider than
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that of section 92 of the Code of Civil Procedure. It
applies to a case so long as the relief claimed falls
within the scope of the section. One of the reliefs that can
be claimed in a suit brought under section 50 of the Act is
that covered by relief (a) set out in clause (ii) namely for
a declaration that a certain property belongs to a public
trust and for possession thereof from person holding it
adversely to the trust viz. suit brought by the Charity
Commissioner or two or more persons interested and in the
trust with his consent in writing as provided in section 51
of the Act.
Section 50 of the Bombay Trust act contemplated not only
suits of a representative character but also suit by two or
yore trustees for preservation of the property of the trust.
Therefore, in a suit filed the Idol to enforce it private
rights, the provision of section 92 of the Code of civil
Procedure are not attracted.[659 D-H]
Bisimannath & Anr. v. Shri Thakur Radhaballabhji &
ors.[1967] 2 S.C.R.. 618 distinguished.
650
Ganapathi Ram Naik v. Kumta Shri Venkataraman Dev
I.L.R. A 1963 Mysore 1059 overruled.
Shree GOLLALESHWAR Dev & Ors. v. Gangawwa Kom Shantayya
Math Ors., A.I.R. 1972 Kart (F.B.) p. reversed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1195 of
1972.
From the Judgment and Decree dated 19.10.1971 and
5.4.1971 of the Mysore High Court in Regular First Appeal
No. 57 of 1967.
S.S. javali and B.P. Singh for the Appellants.
R.B. datar for the Respondents.
The Judgment of the Court was delivered by
SEN, J. This appeal on certificate from the judgement
and decree of the Karnataka High Court dated April 5, 1971
raises a question of general public importance. The question
is whether two or more trustees of a registered public trust
can, with the permission in writing of the Charity
Commissioner as provided for in 8.51 of the Act, bring a
suit for declaration that certain property belongs to the
Public trust and for possession of the same from a person
holding it adversely to the trust under s.50(ii) of the
Bombay Public Trusts Act, 1950. That depends on whether the
words ’persons having interest in the trust occurring in
s.2(10) and s.50 of the Act to or do not include the
trustees of a registered public trust. If they do not, two
or more trustees cannot file a suit as contemplated by
s.50(ii) of the Act. There had been a divergence of opinion
in the High Court as to the precise meaning of the words
’persons having interest in the trust’ in s.2(10) and s.50
of the Act and as conflicting views had been expressed by
different Benches from time to time, the matter was referred
to a Full Bench. The correctness of the view taken by the
Full Bench is in question in this appeal.
Put very briefly, the essential facto are there. Shree
GOLLALESHWAR Dev is an ancient temple and is situate in
village Golgeri in the district of Bijapur which formed part
of the erstwhile State of Bombay prior to the reorganization
of the States. consequent upon the enactment of the Bombay
Public Trusts Act, 1950, the temple was registered as a
public trust. The district of Bijapur became part of the new
State of Karnataka on
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651
the appointed day i.e. November 1, 1956 under the States
Reorganization Act, 1956. The Act has continued to remain in
force in the areas which formed part of the erstwhile state
of Bombay.
It had been customary for the trustees to permit
persons rendering services to the temple to reside in the
suit premises on leave and licence. The subject-matter in
dispute consisting or arches alongside the eastern, northern
and southern walls of the temple are meant for the use of
devotees for their temporary rest and stay, when they come
to visit the temple. The main temple itself is situated in
the middle surrounded by an open courtyard. The suit
premises being within the four walls of the temple, they
form part of the temple and are entered in the certificate
of registration as belonging to the temple.
It appears that plaintiff no. 2’s uncle Mariyappa
Lingappa permitted one Balalochanayya Hiremath to reside in
a part of the suit premises as he happened to be a man of
saintly pursuits and one without a family. Subsequently,
Balalochayya left the premises occupied by him. Thereafter,
plaintiff no. 2’s father as the trustee employed two
brothers, Ramchayya and Gurunandayya to perform services for
the temple and he assigned the suit premises to them for
their residence with a view that they should be allowed to
occupy the premises free so long as the trustees allowed
them to remain in occupation and so long as they were
retained in the service of the temple. they were to remain
occupation of the suit premises as licensees of the trustee
of the temple. Rachayya and Gurunandayya started asserting
rights derogatory to the trust. Accordingly, plaintiff No,
2’s father as the trustee filed civil Suit No, 96 of 1935 in
the Court of the Joint Civil Judge, Bijapur ant the learned
civil Judge by his judgment dated August 8, 1936 decreed the
plaintiffs’ claim. The defendants went up in appeal to the
Court of the District Judge in Regular Appeal No. 109 of
1936 but the appeal was dismissed on November 22, 1937.
Thereafter, plaintiff no. 2’s father terminated the services
of Rachayya Gurunandayya yet called on them to vacate the
suit premise, which they tilt. After Ramchayya and
Gurunandayya were removed from service of the temple,
Shantayya brother of Rachayya ant Smt. Shankarawa, also of
Gurunandayya were taken in service of the temple and allowed
to reside in the suit premises free of rent on condition
that they were to occupy the said premises so long as their
services to the temple were required. In 1957, Shantayya
along with Smt. Shankarawa also started creating trouble and
plaintiff No, 2’s father, according terminated their
services and asked them to vacate the suit
652
premises. On their failure to do so, he brought two suits
being Civil suits Nos. 244 and 255 of 1957 in the name of
the idol Shree Gollaleswar Dev as plaintiff no. 1 with
himself being the trustee as plaintiff no. 2. The case of
the plaintiffs was that the defendants were in occupation of
the said premises with leave and licence of the trustee of
the temple and as they refused to deliver possession of the
suit premises, the suits had been instituted for a
declaration that the property belong to the temple and for
possession thereof. The defendants contested the plaintiffs’
claim on various grounds. They pleaded inter alia, that the
temple had no right or title to the suit premises which
belonged to this by virtue of a registered gift-deed dated
February 19, 1917 executed by Mariyappa, uncle of plaintiff
no. 2 in favour of their predecessor-in-title
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Balalochanayya, that there was no consent in writing given
by Charity Commissioner under 8. 51 and therefore the suits
brought under 8. 50(11) of the Act were not maintainable and
further that the Court of the Civil Judge, Senior Division,
Bijapur had jurisdiction to entertain the suits. The
learned Civil Judge following the decision of the Mysore
High Court in Marikamba Temple Hanumant Temple, Sirsi by
its manager, S.S.. Dhakappa v. Subrava Venkataramanappa
Barkur, I.L.R. 1958 Mysore 736, upheld these contentions and
dismissed the suit as not maintainable.
It was after this that the present suit was brought by the
aforesaid plaintiffs in the Court of the District Judge,
Bijapur as Civil Suit No. 2 of 1962 under 8. 50(ii) of the
Act for the aforesaid reliefs, with the consent in writing
of the Charity Commissioner granted under. 8. 51. As
earlier, the suit was instituted by appellant no. 2’s father
as plaintiff no. 2 in the name of idol Shri Gollaleshwar Dev
as plaintiff no. 1. Plaintiff no. 2 was impleaded as the
present trustee of the temple and plaintiff no. 3 as the
grandson of Mariappa, the elder brother of plaintiff no. 2.
as a beneficiary. Plaintiffs nos. 2 and 3 joined the suit as
persons interested in the trust’. The High Court in the
meanwhile had revered the decision in Marikamba’s case in
Ganapathi Ram Naik & Anr. v. kumta Shri Venkataraman Dev,
1964 1 My-ore L.J. 172. The learned District Judge following
the decision in Ganapathi Ram Naik’s case held that although
a suit for recovery of property belonging to the idol could
be brought either by the idol represented by the trustee or
the manager, such a suit is not contemplated by s. 50(li) of
the Act and was therefore not maintainable. It was observed
:
"The words ’persons having interest in the Trust’
in 6. 50 denote a person whose interest is
inferior to
653
that of trustee or manager and it is by reason of
the existence of that inferior or that inferior or
smaller interest that s. 50 of the Act like s. 92
of the Code of Civil Procedure 1908 authorises
the institution of suit regulate it in the manner
provided there in. But that section does not
govern the institution of a suit by a person
possessing higher and higher interest which is not
regulated by it."
The learned district Judge accordingly held that such a
suit would by governed by the ordinary law and would not
lie in the District Court but either in the Court of the
Civil Judge, Junior Division or the Court of the Civil
Judge, junior Division, according to the valuation of the
subject-matter of the suit.
Aggrieved by the judgement of the District Judge the
appellants preferred an appeal before the High Court. A
Division Bench which heard the appeal felt that the decision
in Ganapathi Ram’s case required consideration and framed
two questions for the opinion of the full bench, namely :
1. Whether the expression ’persons having
interested in the trust’ occurring in s. 2(10) and
s. 50 of the act includes trustees also .
2. Whether two or more trustees of a public trust
can file suit for declaration that a property
belongs to the public trust and for recovery of
possession of the from a person holding it
adversely to trust under s.50 (ii) of the Act.
The full Bench upon the hypothesis that s 50 of the
Act is in pari materia with s. 92 of tho Code expressed that
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the well settled principles governing s. 92 of the Code are
equally Applicable to s. 50 of the see. It accordingly held
following the decision of Woodroffe, J. in Budree mukia v.
Chooni lal Johurry, I.L R. (1906) 33 Cal. 789 at p.807, and
various other decisions of different High Courts laying down
the scope and effect of s. 92 of the Code and Dr.B.K.
Mukherjea,s Tagore Law Lactures on the Hindu Low of
Religious Charitable Trusts, 3rd tn end p. 347, that the
suit contemplated by s. 50 of the act was one
representative character. Tbe observations of woodroffe J.
in the case of Budree Das Mukin v. Chooni Lal Johurry (supra
) which has become the locus classicus were to the effect;
654
"The suit contemplated by the section is one of a
representative character.
It is obvious that the Advocate-General, Collector
or other Public Officer can and do sue only as
representing the public and if, instead of these
public officers, two or more persons having an
interest in the trust, sue with their consent,
they so sue under a warrant to represent the
public as the objects of the trust : see
Lakshmandas Raghunath Das v. Jugal Kishore, I.L.R.
(1896) 22 Bom. 216, 220.
It follows from this that when a person or persons
sue not to establish the general member or
members, but to remedy a particular infringement
of their own individual right, the suit is not
within or need not be brought under the section."
It next relied upon the decision of this Court in
Bishwanath & Anr. v. Shri Thakur Radhaballabhji & Ors.
[19671 2 S.C.R. 618, laying down that a suit by an idol, as
a juristic person against persons who interfered unlawfully
with the property of the idol, was a suit for enforcement of
its private right and was therefore not a suit to which s.
92 of the Code applied and thus such a suit was outside the
purview of s. 92 of the Code and it was not a bar to is
maintainability, for the conclusion that a suit instituted
by the idol represented by its trustees or by presons as qua
trustees for recovery of trust property is a suit for
enforcement of the private rights of the idol or the
trustees.
The Full Bench approved of the view expressed by
Somnath Iyer and Gopivallabha Iyengar, JJ. in Ganpathi Ram
Naik v. Kumt Shri Venkataraman Dev I.L.R. (1963) Mys. 1059,
that a suit by a deity for possession being a suit for
vindicating its own personal rights was not governed by 8.
50 of the Act but disagreed with it on the construction
placed by it upon the words ’person having interest’ in
s.2(10) and s. 50 of the Act. The Division Bench in
Ganapathi Ram’s case held that the expression ’person having
interest’ denotes one whose interest is inferior two that of
a trustee or a manager and it is by reason of existence of
that inferior or smaller interest that 8. 50 of the Act,
like s. 92 of the Code authorises the institution of a suit
and regulates it in the manner provided therein. It was of
the view that s. 50 of the Act does not govern institution
of a suit by a person possessing larger and a higher
interest which is not regulated by it, and differed from the
view taken by Hegde, J. in
655
Shri Marikaba Temple v. Subraya Venkataramanappa, I.L.R.
(1958) Mys. 736, holding that a suit by an idol represented
by the trustee was governed by 8. 50 of the Act. me Pull
Bench accordingly held that persons who institute suits in
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their capacity as trustees do 60 not in their representative
capacity representing the interests of the public but in
their own individual or personal capacity to vindicate their
own rights or that of the idol. That is to say, merely
because the trustees were persons having interest in the
trust, the provisions of s. 50(ii) of the Act would not be
attracted to a suit of this kind. Upon this reasoning, the
Full Bench observed .
"It is, therefore, clear that the expression "two
or more persons having an interest in the trust"
s. 8. 50 of the Act cannot include the trustees bu
persons other than the trustees who have as
interest in the trust. The reason for holding that
the expression "two - or more persons having an
interest in the trust" cannot be construed to
include trustees, is not because the trustees are
not persons interested in the trust but because of
the character of the suit contemplated under 8. 50
of the Act.
The remedy of the idol represented by its trustees
or of the trustees to enforce their individual
rights is not to institute a suit under s. 50 but
to sue in the ordinary courts in the usual way
as any other citizen, and for such a suit, the
trustees are not required to satisfy the
conditions of s. 50 of the Act. A suit for
recovery of trust property instituted by a trustee
t because one for enforcement of the right of the
public, but being merely for enforcement of the
private rights of the trust or trustees, does not,
in our opinion, fall within the scope of section
50 of the Act.
Upon that view, the Full Bench answered the questions
referred as follows :
1. The expression ’Persons having interest in the
trust" occurring in s. 2(10) and 8.50 of the Act
docs not include the trustees when they institute
the suits in their capacity as trustees for
vindicating their private rights.
2. Consequently, two or more trustees of a public
trust cannot file a suit under s.50(ii) of the Act
for
656
a declaration that the property belongs to the
public trust and for possession of the same from a
person holding lt adversely to the trust.
In accordance with the opinion of the Full Bench, the
Division Bench dismissed the appeal filed by the
appellants.
Before we advert to the argument based on s.50 of the
Act, it should be mentioned that it is undisputed that the
temple of Shree Gollaleswar Dev is a public temple
registered as a public trust under the provisions of the
Act. The plaintiff- suing are, first, the idol, Second, a
trustee, and third, a member of the family cr-sting the
endowment i.e. a beneficiary. The question is whether the
plaintiffs nos. 2 and 3 are persons having an interest in
the trust within the meaning of s.2(10) which reads :
"2(10) "Person having interest" includes -
(a) in the case of a temple, a person who is
entitled to attend at or is in the habit of
attending the performence of worship or service in
the temple, or who is entitled to partake or is in
that habit of partaking in the distribution of
gifts therof;
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(b) in the case of a math, a disciple of the math
or a person of the religious pursuasion to which
the math belongs ;
(c) in the case of a wakf a person who is entitled
to receive any pecuniary or other benefit from the
wakf ant includes a person who has a right to
worship or to P perform any religious rite in a
mosque, idgah, imambara, dargah, maqbara or other
religious institutions connected with the wakf or
to participate in any religious or charitable
institution under the wakf;
(d) in the case of a society registered under tho
Societies Registration Act, 1860, any member of
such society; and
(e) in the Case of any other public trust, any
beneficiary."
The word ’trustee’ as defined in s. 2(18) reads :
657
"2(18). "trustee" means a person in whom either
alone or in association with other persons, the
trust property is vested and includes a manager;"
By the Bombay Public Trusts (Amendment) Act, 1953, the
word includes’ was substituted for the word ’means’. me
definition of the words ’person having interest’ in 8.2(10)
was made inclusive to set at rest all doubts and
difficulties as to the meaning of these words, which were
intended and meant to be used in a generic sense so as to
include not only the trustees but also the beneficiaries and
other persons interested in the trust. It would therefore
appear that the definition of the expression ’person having
interest’ in s.2(10) is wide enough to include not merely
the beneficiaries of a temple, math, wakf etc. but also the
trustees. It must therefore follow that plaintiffs nos.2 and
3 who undoubtedly are members of the founder’s family i.e..
beneficiaries, are entitled to attend at performance of
worship or service in the temple and also entitled to
partake in the distribution of offerings to the deity and
thus answer the description ’person having interest’ as
defined in s.2(10) of the Act.
Section 50 of the Act on the construction of which the
appeal depends, insofar as material, provides as follows :
"50. In any case -
(i)
(ii) where a declaration is necessary that a
particular property is a property belonging to a
public trust or where a direction is required to
recover the possession of such property or the
proceeds thereof or for an account of such
property or proceeds from any person including a
person holding adversely to the public trust, or
(ii) where the direction of the court is deemed
necessary for the administration of any public
turst.
The Charity Commissioner or two or more persons
having an interest in the trust and having
obtained the consent in writing of that Charity
Commissioner as provided in Section 51 may
institute a suit whether contentious or not in the
court within the local limits of whose
jurisdiction the whole or part of the subject
matter of the trust is situate, to obtain a decree
for any of the following reliefs :
658
(a) an order for the recovery of the possession of
such property or proceeds thereof.
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Sub-section (1) of s. 51 of the Act which also has a
material bearing, reads :
51(1) If the persons having an interest in any
public trust intend to file a suit of the nature
specified in section 50, they shall apply to the
Charity Commissioner in writing for his consent.
The Charity Commissioner, after hearing the
parties and after making such inquiry as he thinks
fit, may within a period or six months from the
date on which the application is made, grant or
refuse his consent to the institution of such
suit. The order or the Charity Commissioner
refusing his consent shall be in writing and shall
state the reasons, for the refusal.
Sub-s.(l) of s.52 of the Act provides that not with standing
anything contained in the Code of Civil Procedure, 1908, the
provisions of s.92 of the Code shall not apply to the public
trusts governed by the Act.
It is clear from these provisions that s.50 of the Act
created and regulated a right to institute a suit by the
Charity Commissioner or by two or more peron interested in
the trusts in the form of supplementary statutory provisions
without defeasance of the right of the manager or a trustee
or a shebait of an idol to bring a suit in the name of idol
to recover the property of the trust in the usual way. There
is therefore no reason why the two or re person interested
in the trust should be deprived of the right to bring a suit
as contemplated by s.50(ii)(a) of the Act. Although sub-s.
(1) of s. 52 makes ss. 92 and 93 of the Code inapplicable to
public trues registered under the Act, it has made provision
by s. 50 for institution of such suits by the Charity
Commissioner or by two or more persons interested in the
trust and having obtained the consent in writing of the
Charity Commissioner under a. 51 of the Act .
we are unable to subscribe to the view expressed by the
high Court. Although the full Bench rightly adverted to sub-
S. (13 or s. 52 of the Act which excludes the applicability
of ss.92 and 93 of the Code to the public trusts governed by
the Act, it is not right in its conclusion that a suit
instituted by the idol represented by two or more trustees,
with the written consent of
659
the Charity Commissioner as provided in s. 51 of the Act,
was not within the purview of s. 50(ii)(a) of the Act and
therefore could A not be brought in the Court of the
District Judge. Although s. 50 of the Act is structured upon
the pattern of s. 92 of the Code, the Full bench failed to
appreciate that there is no provision in s. 92 of the Code
analogous to cl(ii) or relief (a) of s. 50 of the Act. It
will be seen from B. 50 that the section authorizes the
institution of a suit by the charity Commissioner or two or
more persons interested in the trust only in the District
Court having jurisdiction to try it. The scope of s. 50 of
the Act is wider than that of s. 92 of the Code. It applies
to a case so long as the relief claimed falls within the
scope of the section. One of the reliefs that can be claimed
in a suit brought under s. 50 of the Act is that covered by
relief (a) set out in cl. (ii) viz. for a declaration that a
certain property belong to a public trust and for possession
thereof from a person holding it adversely to the trust viz.
a suit brought by the Charity Commissioner or two or re
persons interested in the trust with his consent in writing
as provided in s. 51 of the Act.
The fallacy underlying in the reasoning of the Full Bench
lies in the wrongful assumption that s. 50 of the Act is in
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pari materia with s. 92 of the Code. It is upon that
erroneous hypothesis that it observes that the suit
contemplated by s. 50 of the Act is one of a representative
character. It overlooks the scope and effect of s. 50 of the
Act which contemplates not only suits of a representative
character but also suits by two or re trustees for
preservation of The property of the trust. The reasoning of
the Full Bench that if the suit is filed by the idol to
enforce its private rights, the provisions of s. 92 of the
Code are not attracted and a fortiori the same principles
equally govern suits under s. 50 of the Act, is not worthy
of acceptance. The Full Bench was also wrong in relying upon
the decision of this Court in Bishwanath’s case which turned
on the construction of s. 92 of the code. In that case, it
was held that the bar of s. 92 did not apply to a suit by an
idol or by its trustees for a declaration that the suit
properties belonged to the trust and for possession of the
same from persons holding the properties adversely to the
trust inasmuch as such a suit is not a suit of a
representative character instituted in the interests of the
public, but is really a suit for the vindication of the
individual or personal rights or the deity or the trustees.
The decision in Bishwanath’s case is therefore clearly
distinguishable and the principles laid down as to the
applicability of s.92 of the Code to such suits are not
attracted.
660
There is no warrant for the restrictive construction
placed by the Full Bench on the expression ’person having
interest’ in a trust occurring in 8. 2(10) and 8. 50 of the
Act. The definition of the expression ’person having
interest’ in s. 2 (10) belng an inclusive one, there is
Lawful justification to exclude the suit brought by two or
re trustees in the name of the idol, to recover possession
of its property against a person holding it adversely to the
trust from the purview of 8. 50(ii) of the Act.
In the result, the appeal succeeds ant is allowed with
costs. The judgment and decree of the high Court affirming
those passed by the District Judge, Bijapur are set aside
ant the plaintiffs’ suit for declaration of title to ant for
posession of the suit property together with mesne profits
is decreed.
S.R. Appeal allowed.
661