Full Judgment Text
2012:BHC-OS:3042
1 Ori.Sms.2029.11
SRP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICITON
ORIGINATING SUMMONS NO. 2029 OF 2011
IN
SUIT NO. 2964 OF 2011
Charu K. Mehta ... Plaintiff
Vs
1. Lilavati Kirtilal Mehta Medical Trust & Ors. ... Defendants
Mr. J.P. Cama, senior counsel with Mr. Raj Patel, Mr. Karl Tamboly,
Mr. Rizvi Nasir Ali and Mr. H.N. Thakore i/b Thakore Jariwalla &
Associates for the Plaintiff.
Mr. Dinyar Madon, senior counsel with Mr. Pranaya Goyal, Ms. Payal
Shah i/b Wadia Ghandy & Co. for the Defendant Nos.1, 8 and 9.
Ms. Rajni Iyer, senior counsel i/b VNA Legal for the Defendant No.2.
Mr. Prateek Sakseria with Ms. Jyoti Shah, Ms. Jesal Shah i/b Daru
Shah & Co. for the Defendant No.3.
Mr. Iqbal Chagla, senior counsel with Mr. Dhirendra Sinha i/b Vidhi
Partners for the Defendant Nos.5, 6, 7 and 11.
Mr. Kevic Setalwad, senior counsel with Mr. Dakshesh Vyas, Ms.
Sushma Nagraj and Mr. Nagendra Dube i/b Lex Firms for the
Defendant Nos. 12, 14 & 15.
Dr. Poornima Advani, Mr. Himanshu Kode, Mr. Omprakash Jha i/b
Law Point for the Defendant No.10.
Mr. Pranav Badheka i/b Parag Sharma for the Defendant Nos.13 & 16.
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CORAM: S.J. VAZIFDAR, J.
Date of Reserving : THURSDAY, 9TH FEBRUARY, 2012.
Date of Pronouncement : MONDAY, 5TH MARCH, 2012.
ORAL JUDGMENT :
1. This is an Originating Summons filed under Rule 238 of the
Bombay High Court (Original Side) Rules (hereinafter referred to as
“the Rules”).
2. The plaintiff and defendant Nos.2 and 3 are the permanent
trustees of the first defendant trust which was established under an
th
indenture of trust dated 5 July, 1978 and which is registered under
the Bombay Public Trusts Act, 1950 (BPT Act). Defendant Nos.4 to
11 are described by the plaintiff as purported trustees. Defendant
Nos.12, 13 and 14 are also permanent trustees. Defendant Nos.15 and
16 are described as term trustees.
Defendant Nos.1, 3 and 5 to 11 are the contesting defendants.
The remaining defendants support the plaintiff.
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th
3(A). On 12 December, 2011, a preliminary objection as to
jurisdiction under section 80 of the BPT Act was raised. During the
course of the arguments on the preliminary issue, Mr. Chagla also
raised another preliminary objection under section 51 of the BPT Act.
I answered the preliminary issues in the negative and directed the
parties to address me on the merits stating that I would give my
reasons for the decision on the preliminary issues while dealing with
the merits.
While replying to the arguments on merits on behalf of the
plaintiff, two further preliminary objections were raised based on
clause 11(v) of the trust deed and under the Limitation Act. I will,
however, answer the preliminary issues in the following order :-
(I) Whether the jurisdiction of the Court to interpret
the clauses of the trust deed is barred by virtue of clause
11(v) thereof?
(II) Whether this Court lacks inherent jurisdiction to
entertain and try this Originating Summons in view of
section 80 of the Bombay Public Trusts Act, 1950?
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(III) Whether the Originating Summons is not
maintainable as the plaintiff had not obtained the
permission of the Charity Commissioner under section
51 of the BPT Act to file it?
(IV) Whether the Originating Summons is barred by
limitation?
4. I will refer to the relevant facts, the clauses of the trust deed and
the submissions in respect thereof while dealing with the merits of the
matter. They are not relevant to the preliminary issues. For the
purpose of the preliminary issues, it is sufficient to note that the
plaintiff seeks only the interpretation of certain clauses of the trust
deed.
5. It was clarified on behalf of the plaintiff that this Originating
Summons is filed only under Rule 238, which reads as under:
“238. Who may apply for the issue of originating summons
and in respect of what matters.- The executors or
administrators of a deceased person or any of them and the
trustees under any deed or instrument or any of them, and
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any person claiming to be interested in the relief sought as
creditor, devisee, legatee, heir or legal representative, or as
beneficiary under the trusts of any deed or instrument, or as
claiming by assignment or otherwise under any such creditor
or other person as aforesaid, may apply for the issue of an
Originating Summons returnable before the Judge in
Chambers for such relief of the nature or kind following as
may by summons be specified and circumstances of the case
may require (that is to say), the determination, without an
administration of the estate or trust, of any of the following
questions or matters:-
(a) any question affecting the rights or interest of the
person claiming to be creditor, devisee, legatee, heir or
legal representative or beneficiary;
(b) the ascertainment of any class of creditors,
devisees, legatees, heirs, legal representatives,
beneficiaries or others;
(c) the furnishing of any particular accounts by the
executors, administrators or trustees and the vouching
(when necessary) of such accounts;
(d) the payment into Court of any moneys in the
hands of the executors, administrators or trustees;
(e) directing the executors, administrators or
trustees to do or abstain from doing any particular act
in their character as such executors, administrators or
trustees;
(f) the approval of any sale, purchase, compromise
or other transaction;
(g) the determination of any question arising in the
administration of the estate or trust.
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(I) Whether the jurisdiction of the Court to interpret
the clauses of the trust deed is barred by virtue of
clause 11(v) thereof?
Mr. Chagla submitted that as clause 11(v) of the trust deed itself
provides for a mechanism for the interpretation of the provisions of
the trust deed the jurisdiction of this Court to do so is barred.
7. Clause 11(v) of the trust deed reads as under :-
“Clause 11: For the accomplishment of the Trusts of these
presents and without prejudice to the generality of any
powers hereby or by law conferred or implied or vested in the
Trustees the following powers and authorities are hereby
expressly conferred on the Trustees, that is to say:-
(v) To decide all questions arising in the
administration of the trusts including all questions
relating to the interpretation of these presents or
otherwise concerning or touching these presents or
to any clause or thing therein contained or touching
or concerning anything or matter relating to or
connected with or arising out of these presents or
the operation thereof, the decision of the Trustees
on all or any of the matters aforesaid shall be final.
8. Clause 11(v) does not bar the jurisdiction of the Court. It is
relevant in the exercise of discretion when the Court is called upon to
interpret the provisions of the trust deed. Parties cannot either by
contract or any other instrument annul the jurisdiction of the Court
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conferred upon it by law. Clause 11(v) is relevant to the exercise of
discretion by the Court and not to the existence of it’s jurisdiction to
interpret the provisions of a trust deed in any proceeding, including an
Originating Summons.
9. If, for instance, the Court finds that the interpretation of the
other provisions of the trust deed by the majority of the trustees is
motivated, absurd, perverse or mala fide , a court or tribunal would not
be prevented from correcting the interpretation. If, however, more
than one interpretation is possible and provided the decision is
rendered bona-fide under clause 11(v), normally the court or tribunal
would not interfere with the decision of the trustees. Even where a
term is capable of more than one interpretation, it is possible that the
trustees exercise of choice is motivated or extraneous and not because
they bona-fide believe that to be the appropriate interpretation.
10. Mr. Chagla relied upon the judgment of the Supreme Court in
Nagappa v. Dodda Bharamappa & Anr. (2002) 9 SCC 689 in support
of his contention based on clause 11(v). The judgment militates
against the submission. It, in fact, suggests that if, under the guise of
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interpretation, the trustees exercise their powers of interpretation to
change the object of the trust, the Court can always hold to the
contrary. In that case, the trust was constituted for establishing
institutions for the social and economic advancement of Muslims and
charitable objects recognized by Muslim laws. A special general body
meeting of the trust resolved thus :-
“It was decided to further clarify the clause in the trust deed
regarding the purpose of the Trust as mentioned in p. 5 of the
trust deed as:
The income of the Trust as well as the Shadi Mahal building
proposed to be erected shall be made available to all
communities irrespective of religion, caste or creed.”
The trust, accordingly, sought exemption from tax under section
11 of the Income Tax Act, 1961. In view of section 13, the exemption
under section 11 was not available, inter-alia , if the income of the
trust was to be used for the benefit for any particular religious
community. The Supreme Court held as under :-
“ 6. On behalf of the Trust it was submitted that the resolution
of the general body of the Trust passed on 20-4-1975
operated and that, therefore, the benefits of the Trust were not
restricted to any particular community or religion. Reliance
in this behalf was placed upon clause (xiv) of the trust deed
which entitles the general body of the trustees, by majority of
the trustees attending the meeting, to “decide the meaning
and scope of any of these clauses …”. The Trust is created
for the purposes of establishing institutions for the
educational, social and economic advancement of the
Muslims and for religious and charitable objects recognised
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by Muslim law. The resolution of 20-4-1975 purports to
change the object of the Trust so that the benefits thereof are
made available to all communities, irrespective of religion,
caste or creed. This is not deciding the meaning and scope of
a clause of the trust deed but an attempt to alter the object of
the trust deed, which is not contemplated by the said clause
(xiv) and is impermissible except by means of an amendment
of the trust deed by the settlors. [emphasis supplied]
The Supreme Court, therefore, did not accept the trustees
purported clarification of the trust deed and construed the same as per
the correct interpretation thereof. The Supreme Court obviously did
not consider the jurisdiction of the Courts to interpret the provisions of
the trust deed to be barred merely because under the deed, the trustees
were entitled to decide the meaning and scope of the clauses thereof.
11. I will deal with the effect of clause 11(v) later while considering
whether I ought to exercise discretion to entertain this Originating
Summons. It is sufficient to observe at this stage that clause 11(v)
does not bar the jurisdiction of the Court to interpret the provisions of
a trust deed.
12. The preliminary issue is, therefore, answered in the negative.
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II. Whether this Court lacks inherent jurisdiction to
entertain and try this Originating Summons in view of
section 80 of the Bombay Public Trusts Act, 1950?
13. Mr. Chagla submitted that in view of section 80 of the BPT Act,
an Originating Summons is not maintainable in the case of a public
trust where the subject matter of the Originating Summons is covered
by the provisions of the BPT Act. His submissions are these. The
interpretation of the provisions of a public trust falls exclusively
within the jurisdiction of the Charity Commissioner. An Originating
Summons is no different from a regular suit. Where the jurisdiction
of a civil court is barred by virtue of section 80, the Rules cannot
confer such jurisdiction upon the High Court in exercise of its civil
jurisdiction. The Rules relating to Originating Summons which fall
under Chapter XVII must be read with the provisions of the BPT Act.
Where a substantive suit is barred, an Originating Summons cannot
confer jurisdiction on a civil court. Mr. Chagla submitted that all the
questions framed in the Originating Summons for the determination/
interpretation of this Court fall within the exclusive jurisdiction of the
Charity Commissioner under section 22 of the BPT Act and, therefore,
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in view of section 80, this Court lacks inherent jurisdiction to
entertain this Originating Summons.
14. Sections 22 and 80 of the BPT Act read as under :-
“ 22. Change. -(1) Where any change occurs to any of the
entries recorded in the register kept under section 17, the
trustee shall, within 90 days from the date of the occurrence
of such change, or where any change is desired in such
entries in the interest of the administration of such public
trust, report such change or proposed change to the Deputy
or Assistant Charity Commissioner in charge of the Public
Trusts Registration Office where the register is kept. Such
report shall be made in the prescribed form.
[(1A) Where the change to be reported under sub-section (1)
relates to any immovable property, the trustee shall along
with the report, furnish a memorandum in the prescribed
form containing the particulars (including the name and
description of the public trust) relating to any change in the
immovable property of such public trust, for forwarding it to
the Sub-Registrar referred to in sub-section (7) of section 18.
Such memorandum shall be signed and verified in the
prescribed manner by the trustee or his agent specially
authorised by him in this behalf]
(2) For the purpose of verifying the correctness of the
entries in the register kept under section 17 or ascertaining
whether any change has occurred in any of the particulars
recorded in the register, the Deputy or Assistant Charity
Commissioner may [hold an inquiry in the prescribed
manner.]
(3) If the Deputy or Assistant Commissioner, as the case
may be, after receiving a report under sub-section (1) and
holding an inquiry, if necessary under sub-section (2), or
merely after holding an inquiry under the said sub-section
(2), is satisfied that a change has occurred in any of the
entries recorded in the register kept under section 17 in
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regard to a particular public trust, [or that the trust should
be removed from the register by reason of the change,
resulting in both the office of the administration of the trust
and the whole of the trust property ceasing to be situated in
the State], he shall record a finding with the reason therefor
[to that effect; and if he is so satisfied, he shall record a
finding with the reasons therefore accordingly]. [Any such
finding shall be appealable to the Charity Commissioner. The
Deputy or Assistant Charity Commissioner shall [amend or
delete the entries] in the said register [in accordance with the
finding which requires an amendment or deletion of entries]
and if appeals [or applications] were made against such
finding, in accordance with the final decision of the
competent authority provided by this Act. The amendments in
the entries so made [subject to any further amendment on
occurrence of a change or any cancellation of entries, shall]
be final and conclusive.
(4) Whenever an entry is amended [or the trust is removed
from the register] under sub-section (3), the Deputy or
Assistant Charity Commissioner, as the case may be, shall
forward the memorandum furnished to him under sub-section
(1A), after certifying the amended entry [or the removal of
the trust from the register] to the Sub-Register referred to in
sub-section (7) of Section 18, [for the purpose of filing in
Book No.1 under section 18 of the Indian Registration Act,
1908 [XVI of 1908], in its application to the State of
Maharashtra].
...............
80. Bar of jurisdiction .- 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 decision or order of such officer or
authority has been made final and conclusive.”
15. This is the first time since the enactment of the BPT Act, 1950,
over sixty years ago that such an objection has been raised. If Mr.
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Chagla’s submission is upheld, it would render the procedure of
Originating Summons redundant so far as public trusts are concerned.
It would render the hundreds, if not thousands, of Originating
Summons and the orders passed therein, including by this Court and
other High Courts, which permit Originating Summons, and the
Supreme Court, void. Such consequences, however, cannot determine
the decision on the preliminary objection as to the jurisdiction of the
Court.
16. Over the past few years, several proceedings have been filed by
the parties against each other pertaining to the trust. For the purpose
of this preliminary objection, the contesting defendants referred to two
proceedings and the orders passed therein in support of the contention
that the question of interpretation of the clauses of the trust deed has
been held to be within the exclusive jurisdiction of the Charity
Commissioner. It was submitted, therefore, that it is not open to me to
take a contrary view.
17. The plaintiff filed Short Cause Suit No.1997 of 2006 in the
Bombay City Civil Court, inter-alia , to challenge the convening of a
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meeting of the trustees by one of the trustees. The suit was dismissed
st th
by an order and judgment dated 21 / 24 September, 2007.
Mr. Chagla relied upon the fact that the learned Judge dealt,
inter-alia , with the interpretation of the said clauses of the trust deed
except clause 11(j). If the matter fell within the jurisdiction of the
Bombay City Civil Court, it was necessary to interpret the clauses as
the grant or refusal of the reliefs claimed therein would depend on the
same. The learned Judge held that there was no bar to the
entertainment, trial and decision of the matter before the court,
including under section 80 of the BPT Act.
The contesting defendants herein filed First Appeal No.266 of
2007. Cross-objections were also filed. Paragraph 3 of the judgment
in this appeal reads as under :-
“3. During the course of hearing, counsel appearing for
the Appellants had sought an adjournment of the proceedings
yesterday in order to consider the position of the Appellants
specifically with reference to the objection on the ground of
jurisdiction. All the learned counsel appearing for the
Appellants have informed the Court today that on a
considered view of the legal position and particularly having
regard to the judgment of the Supreme Court in Church of
North India (supra) the Appellants submit to the correctness
of the cross objection, in the facts of the suit out of which the
First Appeals arise in this case. Having regard to the
concession which has been made on behalf of the Appellants,
which in the view of the Court is consistent with the law laid
down by the Supreme Court in Church of North India
(supra), the judgment of the Learned Trial Judge has been
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rendered without jurisdiction. The findings which have been
tendered by the Learned Trial Judge on the merits of the case
consequently do not survive. This position is not in dispute
between the learned counsel appearing on behalf of all the
parties before the Court. It is agreed and understood by the
learned counsel that the suit would stand dismissed as being
without jurisdiction. There shall be an order in these terms. ”
[emphasis supplied]
18. Mr. Cama submitted that the observations were based on a
concession of counsel and, therefore, do not constitute the judgment
of the Court. I do not agree. The learned Judge has expressly held the
concession to be “consistent with the law laid down by the Supreme
Court in Church of North India” and, therefore, held the impugned
judgment to have been rendered without jurisdiction. This is a finding
of the Court, independent of the concession. It, in fact, endorses the
view that the concession was correctly made. It is not open, therefore,
for me to take a different view.
19. The judgment, however, does not deal with the question of
jurisdiction in the present case. That was a civil suit. This is an
Originating Summons. The question before me neither arose nor was
considered in the judgment. The judgment, therefore, is not
conclusive on the preliminary issue in this case.
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20(A). The second proceeding is Application No.17 of 2006
filed under section 41-D of the BPT Act before the Charity
Commissioner by the plaintiff. The application was for
removal/dismissal of respondent Nos.10, 1, 8, 3, 6, 11 and 12 who are
defendant Nos.2, 3, 4, 8, 9, 13 and 14 respectively herein. The
application was disposed of by an order of the Joint Charity
th
Commissioner dated 25 September, 2009. As pointed out by the
contesting defendants, the order expressly dealt with the construction
and ambit of the opening part as well as sub-clause (h) of clause 11.
For instance, the contentions that the decision to delegate powers is to
be taken collectively and not individually, was rejected. It was held
that no fault could be found in the delegation of powers by one trustee
to another, either by the execution of the power of attorney or by
appointing the managing trustee.
(B) The order of the Assistant Charity Commissioner was
challenged in Writ Petition No.9501 of 2010 which was dismissed by
nd
an order and judgment dated 2 March, 2010. The learned Judge
observed that the order passed by the Assistant Charity Commissioner
was not without jurisdiction.
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(C) The appeal against this order being Letters Patent Appeal
st
No.268 of 2010 was dismissed by an order and judgment dated 1
December, 2010. In paragraph 10 the Division Bench held that the
order of the Assistant Charity Commissioner cannot be said to have
been made without jurisdiction.
21. The orders and judgments in Application No.17 of 2006 are not
conclusive as to the preliminary issue. The effect of these judgments
no doubt is that the observations of the Assistant Charity
Commissioner as to the interpretation of the provisions of the trust
deed are not without jurisdiction. In other words, the effect of these
orders and judgments is that the Charity Commissioner has the
jurisdiction to interpret the provisions of a trust deed while dealing
with an application under section 41-D.
The question is whether in view of the fact that the Charity
Commissioner has jurisdiction to interpret a trust deed for the purpose
of deciding applications under section 41-D or 22, this Court has no
jurisdiction to consider an Originating Summons in which the plaintiff
seeks an interpretation of the provisions of the trust deed. This issue
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has not been dealt with by the above order and judgments.
22. Mr. Cama submitted that for the bar under section 80 of the
BPT Act to operate, it is necessary to establish the following:-
(i) The proceedings must be before a civil court.
(ii) The proceedings must call for a decision or require
the civil court to deal with any question which is by or
under the BPT Act to be decided or dealt with by an
officer or authority under the Act; and
(iii) Such decision or order has been made final and
conclusive.
23. Mr. Cama submitted that while dealing with an Originating
Summons or even a regular suit, this Court is not a civil court within
the meaning of the expression in section 80. He submitted that the
words “Civil Court” in section 80 relate only to the Bombay City
Civil Court. Accordingly, the bar under section 80 is only against the
Bombay City Civil Court and not any other court. The submission
was based on the definition of “Court” in section 2(4) which reads as
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under :
“(4) “Court means in the Greater Bombay, the City Civil
Court and elsewhere, the District Court;”
24. The submission is based on the erroneous presumption that the
definition of “Court” in section 2(4) applies to the expression “Civil
Court” in section 80. There is a distinction in the BPT Act between a
“Court” and a “Civil Court”. The expression “Civil Court” in section
80 is wider than the definition of “Court” in section 2(4). The
expression “Civil Court” must be construed as normally understood
and used and is not restricted to the definition of a “Court” in section
2(4).
25. It was necessary for the Legislature to define the term “Court”
as certain provisions of the BPT Act also use the term “Court” while
conferring jurisdiction. For instance, section 41-D provides that a
trustee aggrieved by an order made under sub-section (1) may, within
ninety days from the date of communication of the order of
suspension, removal or dismissal, apply to the Court against such
order. The expression in section 41-D(5) is not “Civil Court”, but
“Court”. The term “Court” therefore in section 41-D(5) must mean
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the Bombay City Civil Court as defined in section 2(4). The
Legislature obviously intended providing a forum for challenging
orders passed under section 41-D(1). The Legislature having used the
expressions “Civil Court” and “Court” it must be presumed that
different meanings were ascribed to them.
26. Mr.Cama further submitted that the bar under section 80 would
operate in respect of any question which is by or under the Act to be
decided or dealt with by any officer or authority under the Act. He
submitted that the Charity Commissioner has no power to adjudicate
upon or decide or deal with any question while acting under section
22. According to him, under section 22, the Charity Commissioner
can only enter in the record, information forwarded to him which is
merely a clerical act. He submitted that merely because the Charity
Commissioner has been exercising these powers over the past sixty
years does not make any difference. The Charity Commissioner does
not have the power to decide or deal with the validity of the change
report. His is only a mechanical, clerical function under section 22
and nothing more.
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27. The submission is not well founded on principle. It is also
contrary to the judgments of this Court.
Mr. Chagla rightly submitted that the term “correctness” in
section 22(2) includes within its ambit, the existence of any change
having occurred in any of the particulars recorded in the register as
well as the validity thereof. If it were otherwise, the language of
section 22 would have been entirely different. It would have required
the Deputy or Assistant Charity Commissioner to merely ascertain the
correctness of the entry as a question of fact and to ascertain whether
any change had occurred only as a matter of fact and nothing more.
Sub-section (2) requires the Deputy or Assistant Charity
Commissioner to hold an enquiry in the prescribed manner. The
nature of the enquiry under Rule 7 of the Bombay Public Trust Rules,
1951, negates Mr. Cama's submission. The Rule reads as under :
“ 7. Manner of Inquiries .- Except as otherwise provided
in the Act and these rules, inquiries under or for purposes of
sections 19, 22, 22A, 28, 29, 36, 39, 41D, 41E(3), 43(2)(a),
47, 50A, 51, 54 (3) and 79AA (2) or any other inquiry which
the Charity Commissioner may direct to be held for the
purpose of the Act, shall be held as far as possible, in the
Greater Bombay Region in accordance with the procedure
prescribed for the trial of suits under the Presidency Small
Causes Courts Act, 1882, and elsewhere under the
Provisional Small Causes Courts Act, 1887, in any inquiry a
party may appear in person or by his recognised agent or by
a pleader duly appointed to act on this behalf;
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Provided that any such appearance shall, if the
Deputy or Assistant Charity Commissioner so directs, made
by the party in person.”
28(A). In Balaji & Anr. vs Punjabi & Anr. 2002 1 BCR 155 , a
learned single Judge of this Court held in paragraph 16 that the
enquiry conducted by the Assistant Charity Commissioner under
section 22 is in the nature of a judicial enquiry and in such an enquiry,
he must not only consider the effect of the change, but determine
whether the change is validly effected. It was held that the Assistant
Charity Commissioner had the jurisdiction to exercise his powers to
enquire into the legality of the change.
(B) In Vithalrao s/o Sambhajirao Kharpade & ors. v. Motiram s/o
Narsingrao Birajdar & ors. (2010) 4 LJSOFT 167 = (2010) 1 Mh.L.J.
977 a learned single Judge of this Court held :
“10. It has been contended by learned counsel for the
respondents that the enquiry under section 22 of th Act is of
judicial character and is not merely an empty formality.
Reliance is placed on judgment reported in 1980 Mh.L.J. 372
in the matter of Jagatnarayansingh Swarupsingh Chithere
and others vs. Swarupsingh Education Society and another. It
is observed in paragraph No.8 of the judgment thus :
"8. Therefore, though prima facie it appears to be a
mere change, the scheme of the Act contemplates qua
the change under consideration an inquiry of a
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judicial character with an appeal therefrom to the
Charity Commissioner and a further application
under section 72 to the District Judge and yet
another appeal therefrom to the High Court against
which appellate judgment of the High Court, a still
further appeal may, in a given case, lie under the
Letters Patent. Such being the judicial scrutiny and
the extensive gamut of the inquiry under section 22 of
the Act, it is obvious that this inquiry cannot be a
mere factual process or one purely formal in nature.
Investigation into the legality and validity of the
change is implicit. The inquiry is a judicial process
partaking the character of a judicial adjudication. An
elemental pre-requisite or the minimal requirement of
a judicial inquiry and a judicial process is
compliance with the principles of natural justice.
These principles, though not embodied rules,
constitute none the less an important facet and pivot
of the judicial process. Inquiry behind the back of an
aggrieved party is best avoided lest it stands vitiated.
One affected must be noticed and heard. Basic
lacuna in that respect may well render the inquiry
and/or the order therein almost non est at least qua
the aggrieved absent party left unheard and,
therefore, unheeded." [emphasis supplied]
(C) A Division Bench of this Court in Murlidhar s/o Janrao Kale &
ors. vs. State of Maharashtra & ors ., (2011) 1 LJSOFT 38 = (2011)
Mh.L.J. 849 held as under :-
“ 8. Perusal of Section 80 of the Bombay Public Trusts Act
shows that the jurisdiction to decide the validity of the
elections, changes in the board of trustees or trustees having
thus been conferred with the Assistant Charity Commissioner,
the legislature has imposed bar against entertaining a suit by
Civil Court. There is no provision by which the Education
Officer or the Deputy Director of Education or the Director
of Education has any authority or power to decide these
issues. In the case of Jagatnarayansingh Swarupsingh
Chithere and others Versus Swarupsingh Education Society
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24 Ori.Sms.2029.11
and another, reported in 1980 Mh.L.J. 372 this Court held
that the extent of jurisdiction under Section 22 of the Act is
not limited to the only factum of change but it extends its
legality and validity as well.”
29. In view of the above judgments, it is not necessary to consider
the other provisions of the Act relied upon by Mr. Chagla including
sections 73, 74, 79 and 80 and the judgment of the Supreme Court in
in K. Shamrao & ors. vs. Assistant Charity Commissioner (2003) 3
SCC 563.
30. The submission on behalf of the contesting defendants that
the bar under section 80 is not limited to any particular type of
proceeding but is wider is well founded. This is clear from the plain
language of section 80. It does not bar merely suits or any particular
type of proceeding. It is a blanket bar against any civil court deciding
any question which is by or under the Act to be decided or dealt with
by any officer or authority under the Act. The jurisdiction of any civil
court, therefore, to decide or deal with such questions is barred not
merely in respect of a particular type of proceeding but in respect of
proceedings of all types in which such questions arise.
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25 Ori.Sms.2029.11
31. Mr.Cama submitted that this court while deciding an
Originating Summons is not a civil court as the power of this court to
entertain an Originating Summons is derived only from Chapter XVII
of the Rules, that the said rules are made in exercise of powers under
clause XXXVII of the Letters Patent and are a special law and,
therefore, override the provisions of section 80 of the BPT Act, which
is a general law relating to trusts. Mr. Cama relied upon the judgment
of the Supreme Court in Iridium India Telecom Ltd. v. Motorala Inc.
AIR 2005 SC 514 in respect of this contention.
32. The submission is based on the erroneous premise that the
power of this Court to entertain an Originating Summons is derived
only from Chapter XVII of the Rules. Section 128 falls within part X
of the CPC which deals with the power of the High Court to make
rules, regulating their own procedure and procedure of civil courts.
An Originating Summons is recognized in the CPC itself. Section 128
of the CPC reads as under :-
“ 128. Matters for which rules may provide .-(1) Such rules
shall be not inconsistent with the provisions in the body of
this Code, but, subject thereto, may provide for any matters
relating to the procedure of Civil Courts.
(2) In particular, and without prejudice to the generality
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26 Ori.Sms.2029.11
of the powers conferred by sub-section (1), such rules may
provide for all or any of the following matters, namely:-
(a).................
(g) procedure by way of originating summons.”
It is axiomatic that the CPC recognizes the filing of Originating
Summons before the civil courts for if it did not, section 128 would
not provide for rules in respect thereof. It follows therefore, that
Originating Summons may be entertained by civil courts.
33. The origin of an Originating Summons is traced by Mr. Justice
Chitty in the case of Re BUSFIELD WHALEY v. BUSFIELD ; (1886)
32 Ch.D 123 to the year 1852 by the passing of 15 & 16 Vict. c. 86:
“An originating summons first arose under 15 & 16 Vict. c.
86, s. 45, and was confined to the simple case of an order for
the administration of the personal estate of a dead man. This
provision was left untouched until the Orders of 1883 were
issued, which for the first time dealt with the Chancery
Consolidated Orders of 1860 as a whole.
An originating summons is now issued under Order
LV. of the Rules of 1883. This order has greatly enlarged the
scope of an originating summons and made it applicable to
new subjects, as for instance, the execution of trusts. By the
Orders of December, 1885, the scope has been still further
extended. The main difference between a writ of summons
and an originating summons is, that in the one case the
proceedings are in Court, and there are or may be pleadings,
whereas in the other case the proceedings are in Chambers,
and there are no pleadings. As to all the numerous cases to
which by the Orders of 1883 and 1885 an originating
summons was for the first time extended, it is obvious that
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27 Ori.Sms.2029.11
there could not have been any previously existing practice.”
34. The practice of Originating Summons in India has been recognized
and provided for in the Civil Procedure Code, 1908 i.e. much before the
Rules were framed. The Rules regulate the same.
35(A). Mr. Setalwad, supporting Mr. Cama, submitted that even
assuming that section 80 bars the jurisdiction of this court to entertain
an Originating Summons, it would make no difference for section 80
must give way to the rules of this Court. He relied upon paragraphs 9
and 10 of the judgment of the Supreme Court in the case of
Shardadevi v. State of Bihar, (2002) 3 SCC 705, which read as under :-
“9. A Letters Patent is the charter under which the High
Court is established. The powers given to a High Court under
the Letters Patent are akin to the constitutional powers of a
High Court. Thus when a Letters Patent grants to the High
Court a power of appeal, against a judgment of a Single
Judge, the right to entertain the appeal would not get
excluded unless the statutory enactment concerned excludes
an appeal under the Letters Patent.
10. The question which thus arises is whether Section 54 of
the said Act excludes an appeal under the Letters Patent.
Section 54 of the said Act reads as under:
“54. Appeals in proceedings before Court.—Subject to the
provisions of the Code of Civil Procedure, 1908, applicable to
appeals from original decrees, and notwithstanding anything
to the contrary in any enactment for the time being in force,
an appeal shall only lie in any proceedings under this Act to
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28 Ori.Sms.2029.11
the High Court from the award, or from any part of the
award, of the Court and from any decree of the High Court
passed on such appeal as aforesaid an appeal shall lie to the
Supreme Court subject to the provisions contained in Section
110 of the Code of Civil Procedure, 1908, and in Order 45
thereof.”
(B) The provisions of section 54 of the Land Acquisition Act are
different from section 80. They are wider. Further in paragraph 9, the
Supreme Court observed that the right to entertain the appeal would
not get excluded “unless the concerned statutory enactment excludes
an appeal under the Letters Patent”. Thirdly, the decision was based
on the fact that the Letters Patent is not an enactment. Section 54 of
the Land Acquisition Act was not inconsistent with or contrary to any
enactment as the Supreme Court held that the Letters Patent was not
an enactment. This judgment is, therefore, of no assistance to Mr.
Setalwad. Moreover, as I have held earlier, an Originating Summons
is recognized and provided for in section 128(g) of the CPC itself
which is an enactment.
36. It is not necessary to consider the submission regarding the
Rules overriding Section 80 of the BPT Act as section 128(g)
specifically recognizes the jurisdiction of the civil courts to entertain
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29 Ori.Sms.2029.11
an Originating Summons. The rules, therefore, regulate this
jurisdiction conferred by the CPC. Nor is it, therefore, necessary to
refer to a judgment of the Division Bench of the Calcutta High Court
in the case of State Bank of India v. Mohuragang Gulma Tea Estate &
Anr., (1988) 2 Cal.L.T. 167 = MANU/ WB/0189/1988 relied upon by
Mr. Setalwad in respect of the maintainability of the Originating
Summons. In paragraph 1, the Division Bench had held that the rules
of the High Court of Calcutta have special significance in regard to
the procedural aspect for the purpose of due administration of justice ;
that it had stood the test of time and the powers of the High Court to
frame the rules had been preserved under the Letters Patent, which is
saved by the provisions of the CPC.
37. Mr. Cama submitted that the maintainability of an Originating
Summons in such matters was upheld by the judgment of a Division
Bench of this Court in Jamsheed Kanga v. Parsi Panchayat Funds &
Properties, 2011 (5) LJSOFT 19 = 2011 (3) Mh.L.J. 966 .
The appellants in that case took out the Originating Summons
for the determination of questions relating to the powers/authority of
the trustees of the Parsi Panchayat’s funds and properties, the rights of
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30 Ori.Sms.2029.11
the beneficiaries under a Deed of Trust of 1884 and for the proper
administration of the Trust. The respondents challenged the
maintainability of the Originating Summons on the ground that it
raised issues which were purely of a religious nature relating to the
religious tenets, customs, traditions and beliefs of the community.
After referring to Chapter XVII of the Bombay High Court (O.S.)
Rules, the Division Bench held as under :-
“15. A beneficiary under a Deed of Trust is entitled in law
to institute an Originating Summons for the determination of
any question affecting the rights or interests of persons
claiming to be beneficiaries. In the action which emanates
from an Originating Summons, the applicant may seek a
direction to the trustees to do or abstain from doing any
particular act in their character as trustees. The jurisdiction
of the Court is discretionary, for if the Court is of the view
that the matter in respect of which relief is sought cannot
conveniently and properly be disposed of on an Originating
Summons, the Judge may decline to pass an order on the
summons and refer parties to a suit. Where the Court is of the
view that the matter is fit to be dealt with on an Originating
Summons, it is vested with a broad jurisdiction to pronounce
such judgment as the nature of the case shall require. The
order made by the Judge is drawn up as a decree and the
Court is empowered to issue directions touching the carriage
or the execution of the decree.
Precedent:
16. In Vithaldas Cursondas vs. Dulsukhbhai Vadilal, 1919
(21) BLR 972. Mr.Justice Pratt, speaking for this Court held
that "the Rules do not forbid questions of fact being
determined on an Originating Summons and this form of
action is not always inappropriate whenever there is a
question of fact in dispute". But, ruled the Court, the
procedure of an Originating Summons should not be applied
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31 Ori.Sms.2029.11
"where the disputed facts are of such complexity as to involve
a considerable amount of oral evidence". In Rama Aziz vs.
Balkrishna K.Mehta, 1992 (1) LJSOFT 62 = 1993 (1)
Bom.C.R. 267 Mr.Justice B.N. Srikrishna (as the Learned
Judge then was) held that the Court while exercising power
in an Originating Summons, "is not determining a lis". The
Court does not adjudicate upon the rights and liabilities of
parties. In Lyla Darius Jehangir vs. Bakhtawar Lentin, 2007
(2) LJSOFT 25 = 2007 (1) Bom.C.R. 915 a Division Bench of
this Court presided over by Mr.Justice R.M. Lodha (as the
Learned Judge then was) affirmed the principles which were
formulated in the judgments of the Learned Single Judges
both in Vithaldas Cursondas and in Rama Aziz Parpia. The
basic principle which must guide the Court in such cases has
been explained with felicity in the judgment of Chief Justice
M.C. Chagla, speaking for a Division Bench in Mazda
Theatres Ltd. vs. Gordhandas Tribhuvandas Mangaldas.
1954 B.L.R. 1080. The Learned Chief Justice held that the
only two questions which are required are that there must be
a written instrument and what should be required to be done
by the Court is the declaration of the rights of the person
interested under the written instrument. Holding that the
rules providing for the issuance of an Originating Summons
must be "very broadly and liberally interpreted", Chagla, C.J.
held as follows :
"The right contemplated by that rule is any right,
and the whole object of that rule is to make a
procedure available to parties which is both cheap
and expeditious for determination of disputes as to
construction of a written instrument, which dispute
could be settled by the Court interpreting the
instrument and determining what the rights of the
parties are. One would have thought that r. 241 was
precisely intended to cover a case like this where a
lessor and a lessee are disputing their mutual rights
and the question of those rights can be determined
effectively and finally by the Court construing the
relevant provision of the lease and deciding what
the rights of the parties are. It is perhaps not
necessary to point out that our rule is based on the
English r.1 of O.LIVA, and the view consistently
taken by the English Courts that the word
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32 Ori.Sms.2029.11
"instrument" used in the rule was meant to receive a
wide construction and applied to any written
document under which any right or liability whether
legal or equitable, existed; and there are
innumerable cases in the books where a lease has
been construed and the rights of the lessor and the
lessee determined."
The view of the Learned Single Judge that he had no
jurisdiction to entertain the Originating Summons was
consequently reversed.”
38. The challenge to the maintainability of the Originating
Summons in Parsi Panchayat’s case was on an entirely different basis
namely that it raised issues which were purely of a religious nature
relating to the religious tenets, customs, traditions and beliefs of the
community. The judgment therefore, does not preclude a challenge
to the maintainability of an Originating Summons on other grounds.
39. Mr. Cama, however, relied upon paragraph 23 of a judgment of
the Supreme Court in Sarva Shramik Sangh v. Indian Smelting &
Refining Co. Ltd. (2003) 10 SCC 455 :-
“23. Inferentially, from the above it is sought to be asserted
that there is a statutory recognition in Section 59 as to the
entitlement of a worker, at his option or choice to have
recourse to any one of the statutory remedies under the
different Acts and therefore, all and every question relating to
the redress sought including as to whether a person is an
“employee” can also be decided by the courts under the
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33 Ori.Sms.2029.11
Maharashtra Act. This too general and wide assertion
completely overlooks the stipulation made, “If any
proceeding in respect of any matter falling within the purview
of this Act is instituted” in the said provision. As to what
matters fall within the purview of the Act is to be found
outside Section 59 and there is no such indicator in this
regard in Section 59 itself. That was, what has been
specifically, elaborately and analytically found dealt with in
Cipla case by the learned Judges and mere non-mention of
Section 59 in the judgment is no justification to contend that
they were either unaware of it or that a relevant and
necessary provision which ought to have been considered has
been overlooked, which if had been adverted to the result
would or ought to be different from the one taken, in that
case. We have carefully gone through the construction placed
upon the statutory provisions noticed and conclusions drawn
as to the class or category of matters which only would fall
within the purview of the Maharashtra Act and the necessity
for any complainant to answer the description, as a condition
precedent, to be or having been treated by the employer as
his “employee” and the relationship of employee and
employer with the employer against whom any such
complaint of unfair labour practice is made and relief
therefor sought is beyond controversy and common case or
accepted position and that we are in respectful agreement
with the same. The interpretation of the relevant provisions of
the Maharashtra Act appears to be in tune with the legal
sense of the words construed in the context of the statute and
the jurisdiction of the authorities constituted thereunder. Such
a construction paves the way for avoiding uncertainty as well
as possible inconsistency or expression of contradictory
views when more than one group chose to avail of different
forums for similar kind of relief and therefore, could not be
said to have resulted in serious injustice, hardship or
anomaly to warrant the countenance of a different view. A
careful, critical and analytical scrutiny of the various
provisions which consciously and conspicuously use the
words “employee” and “employer” in all the relevant
provisions would postulate the pre-existing relationship of
such employee and employer being an accepted/acceptable
fact. Consequently, the question of ousting the jurisdiction of
an assumed and unfound jurisdiction to be otherwise existing,
does not at all arise.”
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34 Ori.Sms.2029.11
The question in that case was whether merely because a
particular statutory provision is not mentioned therein, it would affect
the validity of a judgment on the ground that the court was either
unaware of it or that the relevant and necessary provisions which
ought to have been considered had been overlooked. It was not a case
where the basis of the objection or claim was different. The ratio was
sought to be challenged on the ground that the necessary provisions of
law had not been considered. I do not read the judgment to hold that if
the basis of a claim or defence is entirely different to the one
considered in another judgment, it would be affected by the ruling in
the earlier judgment. In Parsi Panchayat’s case, it was not contended
that an Originating Summons is not maintainable in view of section
80 of the BPT Act. The issue of maintainability in the present case
cannot be held to have been decided by the judgment in the Parsi
Panchayat’s case.
40. Mr. Setalwad also invited my attention to various rules in
chapter XVII to distinguish the nature of the proceedings in a regular
suit and in an Originating Summons. He submitted that the entire
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35 Ori.Sms.2029.11
procedure including the forms prescribed in the rules for the two
proceedings is different. I do not find it necessary to refer to these
provisions for I am of the view that a civil suit is, in substance,
different from an Originating Summons necessitating the different
rules being made and the forms being prescribed for a regular suit and
an Originating Summons. In other words, the difference in the rules
made and the forms prescribed does not determine the preliminary
issue. Instead, it is the answer to the issue namely that an Originating
Summons is in substance different from a regular suit that has
determined the different rules made and forms prescribed for them. In
other words, the rules and the forms do not indicate the nature of the
proceedings. It is the difference in the nature of the proceedings that
has resulted in different rules being made and the different forms
prescribed.
41. This brings me to my reasons for answering the preliminary
issue against the contesting defendants.
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36 Ori.Sms.2029.11
42. The first and fundamental difference between an Originating
Summons and a regular suit or other proceedings in a civil court is
that in an Originating Summons the court may only interpret the
provisions of a trust deed. The court may determine the question but
without the administration of the estate or the trust.
43. Section 80 bars the jurisdiction of the civil court to decide or deal
with any question which is to be decided or dealt with by any officer or
authority under the BPT Act and in respect of which the decision or the
order of such officer or authority has been made final and conclusive.
Parties cannot merely seek the Assistant Charity Commissioner’s
interpretation of a trust deed. The Assistant Charity Commissioner has no
power akin to the powers under rule 238. He cannot decide the question of
construction of a deed simpliciter. The Assistant Charity Commissioner has
no power either under section 22 or any other provisions of the BPT Act to
merely interpret the document or to merely determine the questions
stipulated in rule 238. The questions stipulated in rule 238 may well fall for
consideration of the Charity Commissioner in an application under section
22.
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37 Ori.Sms.2029.11
He can, however, decide these questions only while
considering the proceedings under section 22 which result in
substantive orders one way or the other. The question of the decision
of the Charity commissioner on the interpretation of the provisions of
the trust deed attaining finality, therefore, does not arise.
44. Mr. Chagla submitted that the bar in section 80 is not against
the filing of a particular proceeding, including a suit, but to the nature
of the question that the civil court is invited to decide. The term
“question” would include not merely the main question or relief
claimed but every question even incidental to or necessary for the
decision of the main question. Thus the main question or relief
claimed may be one which does not fall within the ambit of the
Assistant Charity Commissioner’s powers including under section 22.
However, if an issue is to be considered and decided for the purpose
of determining the main question or the relief claimed, it is also
barred. He submitted that in this case every question raised falls
within the jurisdiction of the Assistant Charity Commissioner.
Moreover, the questions raised in the Originating Summons are not
merely incidental questions, but main questions.
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38 Ori.Sms.2029.11
45. There is a distinction between :
(a) the decision of the authority under the BPT Act on a question
which is to be decided or dealt with by him and which decision has
been made final and conclusive, and
(b) the findings and decisions of the authority on questions/issues
required to be dealt with in the process of arriving at such decisions
which have been made final and binding.
It is with respect to the former and not the latter that the
jurisdiction of the civil court to decide or deal with is barred. The
error in Mr. Chagla's submission is in equating the findings of the
Assistant Charity Commissioner arrived at in proceedings under
section 22 with his decision or order on the questions which are made
final under the BPT Act.
46. For instance, in the proceedings under section 22, it may be
necessary for the Assistant Charity Commissioner to decide the
question of genuineness or admissibility of a document. Finality and
conclusiveness cannot possibility be attached to such a decision
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39 Ori.Sms.2029.11
barring the jurisdiction of the civil court in other proceedings from
deciding the same, though the scope of the two proceedings are
entirely different.
47. What is made final under section 22 is the question whether the
change should be effected or not. The findings on the issues which
may be required to be dealt with while arriving at this decision are not
made final. What is barred by section 80 is the jurisdiction of the civil
court to decide or deal with the question in respect of which the
decision or order of the authority has been made final and conclusive.
What is final and conclusive under section 22(3) is the decision
regarding the amendment in the entries alone and not every aspect that
was dealt with and decided in the proceeding leading to this decision.
I will presume that the Charity Commissioner has the
jurisdiction to decide the questions that have been raised in the
Originating Summons in the course of considering the change reports
that have been filed and that will no doubt be filed hereafter. While
considering the application under section 22, the question that the
Charity Commissioner deals with is whether the change has occurred
in any of the entries recorded under the register kept under section 17
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40 Ori.Sms.2029.11
in regard to the public trust or whether the trust should be removed
from the record by reasons of such change. In deciding these
questions, the Charity Commissioner would no doubt be entitled to
interpret the provisions of the trust deed. That however is not the end
of the matter. The question then is whether his conclusion on issues
required to be considered while deciding the question whether the
change ought or ought not to be recorded are also made final and
conclusive.
48. The answer lies in the last sentence of section 22(3) namely:
“The amendments in the entries so made subject to any further
amendment on occurrence of a change or any cancellation of entries
shall be final and conclusive.” What is made final and conclusive is
an amendment in the entires made pursuant to a decision under
section 22. Section 22(3) does not make every part of the decision
final and conclusive. Finality and conclusiveness is ascribed only to
the amendments in the entries and not to every finding in respect of
the decision to amend the entry.
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41 Ori.Sms.2029.11
49. The present Originating Summons does not challenge the
amendments in the entries already made but only seeks an
interpretation of the various clauses of the trust deed. That the
interpretation of this court may affect the entries already made and the
decision in respect of the future applications under section 22 is
another matter altogether.
50. Mr. Chagla, in support of his submission, relied upon the
judgment of the Supreme Court in Church of North India vs.
Lavajibhai Ratanjibhai (2005) 10 SCC 760 . The judgment does not
deal with the maintainability of an Originating Summons.
(A) The observations of the Supreme Court in respect of section 80
of the BPT Act have, however, been relied upon in support of the
contention that this Court has no jurisdiction to entertain the
Originating Summons. The judgment, in fact, supports the
maintainability of the Originating Summons on the point that I have
just discussed. It is necessary to note the nature of the suit in that
case. The plaintiffs there sought a declaration that the Church of
North India (CNI) impleaded as defendant No.5, was the legal
continuation and successor of the first District Church of the Brethren
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42 Ori.Sms.2029.11
together with with all rights in respect of its properties and that the
decisions and resolutions of the CNI were binding on all the
pastorates in Gujarat functioning as local churches under the first
District Church of the Brethren and a perpetual injunction restraining
defendant Nos.1 to 4 from acting contrary to the constitution,
decisions and resolutions of the CNI and from obstructing the plaintiff
and other members of the CNI in acting in accordance with the said
constitution, decisions and resolutions and enjoyment and possessions
of the churches and their properties. The plaintiff also sought an order
restraining defendant Nos. 1 to 4 from acting in the name of the first
District Church of the Brethren and from collecting funds, donations
etc., in that name. Thus, the entire ambit and nature of the suit were
entirely different from this Originating Summons.
The question is whether the Supreme Court has held that a civil
court has no jurisdiction to consider a question that may arise for the
consideration of the Assistant Charity Commissioner under section
22. It is important to note paragraphs 31 and 71 of the judgment
which read as under :-
“31. Sub-section (2) of Section 22 empowers a Deputy or
Assistant Charity Commissioner to hold an inquiry for the
purpose of verifying the correctness of the entries in the
register kept under Section 17 or ascertaining whether any
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43 Ori.Sms.2029.11
change has occurred in any of the particulars recorded
therein. In the event, a change is found to have occurred in
any of the entries recorded in the register kept under Section
17, the Deputy or Assistant Charity Commissioner is
required to record a finding with the reasons therefor to that
effect. Such an order is appealable to the Charity
Commissioner. By reason of changes which have been found
to have occurred, the entries in the register are required to be
amended. Such amendment on the occurrence of change is
final and conclusive. Section 22-A empowers the Deputy or
Assistant Charity Commissioner to hold further inquiry.
Section 30 creates a legal fiction as regards notice on the
part of a person acquiring immovable property of the
relevant particulars relating to such trust entered in the
register in relation to any property belonging to a public
trust. Section 31 creates a bar to hear or decide suits in the
following terms:
“31. (1) No suit to enforce a right on behalf of a public trust
which has not been registered under this Act shall be heard
or decided in any court.
(2) The provisions of sub-section (1) shall apply to a claim of
set-off or other proceeding to enforce a right on behalf of
such public trust.”
71. A change notice having been given, it would now be for
the appropriate authority to consider the matter and if a
change has occurred, a finding is required to be arrived
which must contain the reasons therefor. The defendants are
disputing that any such change in accordance with law was
effected. An order passed by the Deputy or Assistant Charity
Commissioner is appealable. Yet again, when an amendment
is made in the entry in the register, the same would be final
and conclusive. A power even exists for holding a further
inquiry.” [emphasis supplied]
(C) The Supreme Court held that the entries in the register which
are amended on the Charity Commissioner’s finding that a change had
occurred, is final and conclusive. The amendment carried out by the
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44 Ori.Sms.2029.11
Charity Commissioner in the register pursuant to a finding that a
change had occurred is final and conclusive. The question of its
validity cannot be challenged before a civil court in view of the
provisions of section 80. The judgment expressly states that when an
amendment is made in a entry in the register, “the same” meaning
thereby the amendment that is made, would be final and conclusive.
I do not find the Supreme Court as having held that every finding by
the Charity Commissioner leading to his decision to record the
amendment is final and binding on a civil court in every other
proceeding and that by reason thereof, the jurisdiction of the civil
court to decide or deal with such questions is also barred.
52. Mr. Chagla placed considerable reliance upon paragraphs 40,
83 and 98 of the judgment which read as under:-
“40. In Dhulabhai v. State of M.P. Hidayatullah, C.J.
summarised the following principles relating to the exclusion
of jurisdiction of civil courts: (SCR pp. 682 B-H-683 A-C):
“(1) Where the statute gives a finality to the orders of the
special tribunals, the civil courts' jurisdiction must be held to
be excluded if there is adequate remedy to do what the civil
courts would normally do in a suit. Such provision, however,
does not exclude those cases where the provisions of the
particular Act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental
principles of judicial procedure.
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45 Ori.Sms.2029.11
(2) Where there is an express bar of the jurisdiction of the
court, an examination of the scheme of the particular Act to
find the adequacy or the sufficiency of the remedies provided
may be relevant but is not decisive to sustain the jurisdiction
of the civil court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry
may be decisive. In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for
the determination of the right or liability and further lays
down that all questions about the said right and liability shall
be determined by the tribunals so constituted, and whether
remedies normally associated with actions in civil courts are
prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra
vires cannot be brought before Tribunals constituted under
that Act. Even the High Court cannot go into that question on
a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or
the constitutionality of any provision is to be challenged, a
suit is open. A writ of certiorari may include a direction for
refund if the claim is clearly within the time prescribed by the
Limitation Act but it is not a compulsory remedy to replace a
suit.
(5) Where the particular Act contains no machinery for
refund of tax collected in excess of constitutional limits or
illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from
its constitutionality are for the decision of the authorities and
a civil suit does not lie if the orders of the authorities are
declared to be final or there is an express prohibition in the
particular Act. In either case the scheme of the particular Act
must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not
readily to be inferred unless the conditions above set down
apply.”
(See also Rajasthan SRTC v. Krishna Kant, Dwarka Prasad
Agarwal v. Ramesh Chander Agarwal, Sahebgouda v.
Ogeppa, Dhruv Green Field Ltd. v. Hukam Singh and Swamy
Atmananda v. Sri Ramakrishna Tapovanam.)
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46 Ori.Sms.2029.11
83. 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 wherewith a court of competent jurisdiction
can deal with and if the same is not expressly or impliedly
barred. Once a decision is arrived at, having regard to the
nature of the claim as also the reliefs sought for, that the civil
court has no jurisdiction, Section 26 perforce will have no
application whatsoever.
98. The principle enunciated in each of the decisions laid
down relates to the fact situation obtaining therein. In each
case indisputably the lis arose for determination of a question
relating to interpretation of one or the other clause
enumerated in different provisions of the BPT Act which come
either within the exclusive jurisdiction of the statutory
authorities or otherwise. The civil court will have no
jurisdiction in relation to a matter whereover the statutory
authorities have the requisite jurisdiction. On the other hand,
if a question arises, which is outside the purview of the Act or
in relation to a matter, unconnected with the administration
or possession of the trust property, the civil court may have
jurisdiction. In this case, having regard to the nature of the
lis, the jurisdiction of the civil court was clearly barred.”
53. The observations, in fact, support the contesting defendants. In
Dhulabhai’s case, the Supreme Court in fact held that where the
statute gives a finality to the orders of the special tribunals, the civil
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47 Ori.Sms.2029.11
court’s jurisdiction must be held to be excluded “if there is adequate
remedy to do what the civil court would normally do in a suit”. As I
have already held, the Charity Commissioner cannot, under section 22
or under any other provision, entertain an application merely for the
interpretation of the clauses of a trust deed. His jurisdiction to
interpret the provisions of the trust deed arises only when an
application is made for substantive reliefs. In fact, the Originating
Summons is not even maintainable under section 34 of the Specific
Relief Act not merely because a consequential reliefs are not sought.
54. The jurisdiction of the Charity Commissioner arises when any
change occurs to any of the entries recorded in the register kept under
section 17. An Originating Summons does not have to await the
occurrence of such change.
55. Another significant difference between an Originating
Summons and any other proceedings in a civil court such as a regular
suit or proceedings under section 22 of the BPT Act is that whereas
the court may or may not decide an Originating Summons, the civil
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48 Ori.Sms.2029.11
court is bound to decide every proceeding. Rule 246 reads as under :-
246. Court not bound to determine question of
construction.- The Court or Judge in chambers shall not be
bound to determine any such question of construction if in its
or his opinion it ought not to be determined on Originating
Summons.”
I will refer to the judgments in support of this proposition while
considering the question of exercise of jurisdiction in this case.
Though an Originating Summons is a suit on the original side, this is
an important distinction between a regular suit and an Originating
Summons. This distinction is not based on the difference in the form
of a normal suit and the form of an Originating Summons. The
distinction is one of substance which answers the issue of
maintainability. The court is bound to decide a normal suit. The court
does not have the discretion whether or not to entertain and decide a
normal suit. The court is, however, not bound to decide the questions
raised in an Originating Summons. This is a fundamental distinction
between an Originating Summons and other proceedings such as
under section 22 of the BPT Act or a normal suit. The Assistant
Charity Commissioner is bound to consider and decide the
applications made thereunder. He cannot avoid doing so on the basis
of the nature of the disputes and issues that arise thereunder.
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49 Ori.Sms.2029.11
In fact in the present case, I have refrained from entertaining
the Originating Summons having come to the conclusion that an
Originating Summons is not an appropriate proceeding in the facts
and circumstances of the present case. If the questions raised in this
Originating Summons fall for consideration in any other proceedings,
the court or authority is bound, absent anything else, to consider and
decide the same.
56(A). The nature and purpose of an Originating Summons also
indicates the fundamental difference between an Originating
Summons and other proceedings. A Division Bench of this Court in
the case of Mazda Theaters Limited v. Gordhandas, (1954) 56 BLR
1080 held as under :-
"The right contemplated by that rule is any right, and the
whole object of that rule is to make a procedure available to
parties which is both cheap and expeditious for
determination of disputes as to construction of a written
instrument, which dispute could be settled by the Court
interpreting the instrument and determining what the rights
of the parties are. One would have thought that r. 241 was
precisely intended to cover a case like this where a lessor and
a lessee are disputing their mutual rights and the question of
those rights can be determined effectively and finally by the
Court construing the relevant provision of the lease and
deciding what the rights of the parties are. It is perhaps not
necessary to point out that our rule is based on the English
r.1 of O.LIVA, and the view consistently taken by the English
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50 Ori.Sms.2029.11
Courts that the word "instrument" used in the rule was meant
to receive a wide construction and applied to any written
document under which any right or liability whether legal or
equitable, existed; and there are innumerable cases in the
books where a lease has been construed and the rights of the
lessor and the lessee determined."
These observations were also quoted in paragraph 16 of the
Parsi Panchayat’s case.
(B) A learned single Judge of this Court after referring to rule 238
held in paragraph 23 of the judgment in the case of Rama Aziz Parpia
v. Balkrishna K. Mehta, 1992 (1) LJSOFT 62 = 1993(1) Bom.C.R.
267 as under :-
“23. In my view, the Court, while exercising power in
deciding an originating summons, is not determining a lis. It
is not adjudicating the rights and liabilities of parties.
Particularly, when the parties are the legatees and executors,
both of whom, by definition, must be interested in true
execution of the terms of the Will, it is not possible to
contemplate on originating summons as a process of
resolution of conflict of interest or adjudication of rights and
liabilities. To put it figuratively, this is a special jurisdiction
created to pour oil over troubled waters or to grease the
creaking joints. This is the true nature of the jurisdiction, as I
perceive it, and, as long as the estate can be administered in
a particular manner, neither contrary to the terms of the Will
nor to any law applicable, the Court has jurisdiction to give
directions to the executors to administer the estate in such
manner. This, in my view, is the true purpose of an
originating summons.”
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51 Ori.Sms.2029.11
Apart from being bound, by these observations, I am in
respectful agreement with the same. Further these observations are
material in answering the question of maintainability raised by the
contesting respondents in the present case.
57. The judgment in Rama Aziz Parpia v. B.K. Mehta was cited
with approval of a Division Bench of this Court in Mrs. Lyla Darius
Jehangir (nee Ghaswala) Vs. Bakhtawar Lentin & ors. 2007 (2)
LJSOFT 25 = (2007)1 Mah LJ 544 . The Division Bench held :-
“10. In yet another case of Rama Aziz Parpia and others
vs. Balkrishna K. Mehta, the learned single Judge of this
Court held that an originating summons is not a process for
declaration of the rights of the parties, nor is it a lis, as
popularly understood. By this, the court is not adjudicating
the rights and liabilities of the parties; particularly, when the
parties are the legatees and executors, both of whom, being
interested in true execution of the terms of the Will. In the
words of the learned single Judge :
"An originating summons is a means for getting over
unexpected, uncontemplated difficulties which crop
up during the administration of the estate by
Executors or trustees. Finding the difficulty
insuperable, the parties approach the Court for
indicating the most just and equitable manner of
administering the estate, in the circumstances,
consistent with the wishes of the testator or settlor, as
the case may be."
11. The nature of the proceedings of the originating
summons highlighted by the learned single Judges of this
court in the case of Vithaldas Cursondas and Rama Aziz
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52 Ori.Sms.2029.11
Parpia (supra) appear to us to be sound; we approve the
same.”
58. An Originating Summons provides the guidelines to the
concerned parties especially the executors of an estate of the trustees
of a trust. An Originating Summons is, as the Division Bench in
Mazda Theaters Limited’s case held, a cheap and expeditious
procedure available to the parties for the determination of the disputes
as to the construction of the written instrument, which dispute could
be saved by determining the rights of the parties. If the preliminary
objection is upheld, the very purpose of an Originating Summons
would be defeated.
59. The preliminary issue is, therefore, answered in the negative.
(III) Whether the Originating Summons is not
maintainable as the plaintiff had not obtained the
permission of the Charity Commissioner under section
51 of the BPA Act to file it?
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53 Ori.Sms.2029.11
60. Mr. Chagla submitted that this Originating Summons is not
maintainable as the plaintiff had not obtained the sanction of the
Charity Commissioner to file the Originating Summons under section
51, which is a condition precedent. He contended that the Originating
Summons is barred as the “reliefs” sought fall within sections 50(iii)
(b), (o), (p) and (q) and section 51 of the BPT Act.
61. Section 50, so far as it is relevant and section 51 read as
under :-
“50. Suit by or against or relating to public trusts or
trustees or others.- In any case, --
...................
(iii) where the direction of the Court is deemed necessary
for the administration of any public trust, or
...................
(b) the removal of any trustee or manager;
...................
(o) an order varying, altering, amending or superseding
any instrument of trust;
(p) declaration or denying any right in favour of or
against a public trust or trustee or trustees or beneficiary
thereof and issuing injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may
require which would be a condition precedent to or
consequential to any of the aforesaid relief or is necessary in
the interest of the trust;
…..............
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54 Ori.Sms.2029.11
51. Consent of Charity Commissioner for institution of
suit:
(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. If the Charity Commissioner after hearing the
parties and making such enquiries (if any) as he thinks fit is
satisfied that there is a prima facie case, he may, within a
period of six months from the date on which the application
is made, grant or refuse his consent to the institution of such
suit. The order of the Charity Commissioner refusing his
consent shall be in writing and shall state the reasons for the
refusal.
(2) If the Charity Commissioner refuses his consent in the
institution of the suit under sub-section (1) the persons
applying for such consent may file an appeal to the
Maharashtra Revenue Tribunal, constituted under the
Bombay Revenue Tribunal Act, 1957, in the manner provided
by this Act.
(3) In every suit filed by persons having interest in any
trust under section 50, the Charity Commissioner shall be a
necessary party.
(4). Subject to the decision of the Maharashtra Revenue
Tribunal in appeal under section 71, the decision of the
Charity Commissioner under sub-section (1) shall be final
and conclusive.”
62. The scope of this Originating Summons filed under Rule 238
does not fall within the ambit of section 50. The directions and
interpretation that the plaintiff seeks do not fall within sub-sections (i)
to (iv) of section 50 read with the sub-clauses that follow them. The
plaintiffs have not sought the removal of any trustee or a manager.
They have not sought an order varying, altering, amending or
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55 Ori.Sms.2029.11
superceding any instrument of trust. They have not sought a
declaration denying any right in favour of or against a public trust or
trustee or trustees or beneficiary thereof. The question, therefore, of
the plaintiffs seeking any relief which would be a condition precedent
to or consequential to any of the aforesaid reliefs does not arise.
63. It is not necessary, therefore, for a party to seek the sanction of
the Charity Commissioner under section 51 before filing an
Originating Summons under Rule 238.
64. It is not, necessary, therefore, to consider Mr. Cama’s
submission that section 50 only applies to the Bombay City Civil
Court as it refers to a suit in the “Court”. “Court” is defined in section
2(4) to mean in Greater Bombay, the City Civil Court and elsewhere,
the District Court. He submitted, therefore, that the permission of the
Charity Commissioner is not required while filing a suit in the
Bombay High Court. Nor is it necessary, therefore, to consider Mr.
Cama’s submission that sections 50 and 51 do not apply to an
Originating Summons as it is not a suit.
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56 Ori.Sms.2029.11
65. The preliminary issue is answered in the negative.
IV. Whether the Originating Summons is barred by
limitation?
66. As I mentioned earlier, it was only in reply to the arguments on
behalf of the plaintiff that a further preliminary issue was raised on
behalf of the contesting defendants to the effect that the Originating
Summons is barred by limitation.
67. Mr. Chagla submitted that the plaintiffs had, more than three
years prior to the filing of the Originating Summons, disputed the
interpretation of the same clauses of which they now seek an
interpretation. The contesting defendants acted on the basis of the
disputed interpretation more than three years prior to the filing of the
Originating Summons. Relying upon the judgment of the Supreme
Court in Kerala State Electricity Board v. T.P. Kunhaliumma (1976) 4
SCC 634 (paragraphs 18, 21 and 22). Mr. Chagla submitted that the
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57 Ori.Sms.2029.11
law of limitation also applies to proceedings filed other than under the
Code of Civil Procedure.
68. The plaintiffs agreed that except clause 11(j), they had disputed
the interpretation of the said clauses by the contesting defendants
more than three years prior to the filing of the Originating Summons.
Mr. Chagla relied upon paragraph 11 of the affidavit of evidence dated
th
8 June, 2007, of plaintiff No.1 in Short Cause Suit No.1997 of 2006,
to demonstrate that the plaintiffs had also disputed the interpretation
of clause 11(j) of the contesting defendants. By contending that the
permanent trustees can be appointed only by permanent trustees under
clause 17, the plaintiffs had indeed impliedly contended that the
power under clause 11(j) is not available for the appointment of
permanent trustees.
69. I proceed, therefore, on the basis that the question of
interpretation of the said clauses fell for consideration and was
disputed between the parties more than three years before the
Originating Summons was filed.
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58 Ori.Sms.2029.11
70. The schedule to the Limitation Act, 1963, does not provide for
Originating Summons. If a period of limitation is applicable, an
Originating Summons would fall within the residuary article. Articles
113 and 137 of the Limitation Act read as under :-
THE SCHEDULE
PERIODS OF LIMITATION
PART X – SUITS FOR WHICH TERE IS NO PRESCRIBED PERIOD
Description of suit Period of
limitation
Time from which period
begins to run
113. Any suit for which no
period of limitation is
provided elsewhere in this
Schedule
Three years When the right to sue
accrues
PART II – OTHER APLICATIONS
Description of suit Period of
limitation
Time from which period
begins to run
137. Any other application
for which no period of
limitation is provided
elsewhere in this division.
Three years When the right to sue
accrues
71. I restrict myself to an Originating Summons under Rule 238. In
other words, I restrict myself to an Originating Summons where the
plaintiff seeks only the interpretation of the clauses of a trust deed.
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59 Ori.Sms.2029.11
72. In such an Originating Summons, the question of the right to
sue does not arise. There is no lis between the parties. The plaintiff
seeks merely an interpretation of the provisions of the trust deed. The
plaintiff seeks no consequential reliefs even of a declaration based on
the interpretation thereof. The right to apply for the interpretation of a
clause is neither crystallized or exhausted for all times upon the
assertion of a particular interpretation by the plaintiff at any stage.
73. The right under rule 238 is a continuing right. To hold that the
moment a party asserts an interpretation of a provision of a trust deed
his right to seek an interpretation thereof under rule 238 gets
extinguished upon the expiry of the period of three years, would lead
to startling consequences. For instance, a trustee or a beneficiary may
oppose a particular act on behalf of a trustee or a beneficiary based on
a particular interpretation of the trust deed. He may not file an action
in respect thereof if the act complained of is minor or because the
parties arrive at an understanding in respect thereof. If Mr. Chagla’s
submission is accepted, the first party would be barred from invoking
the jurisdiction of this Court under rule 238 for all times after the
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60 Ori.Sms.2029.11
expiry of a period of three years, irrespective of the fact that the
interpretation is necessary in view of the future conduct of the others.
Each act of the concerned person, be he a trustee or a beneficiary,
gives rise to a different cause of action. If Mr. Chagla’s contention is
accepted, it would mean that the aggrieved party is barred forever
from challenging all acts merely because one question viz., the
interpretation of a provision of the trust deed had not been pursued
earlier. The challenge to each act would require an interpretation of
the trust deed.
74. This preliminary issue is also answered in favour of the
plaintiffs. The Originating Summons is not barred by limitation.
MERITS
75. This brings me to the merits of the matter. As I noted earlier,
the plaintiff merely seeks the interpretation of certain clauses of the
trust deed. She does not seek a declaration as to the validity of the
provisions of the trust deed. Nor does she seek any orders based upon
the interpretation that may be placed by the Court upon the provisions
of the trust deed.
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61 Ori.Sms.2029.11
76. The plaintiff seeks a determination by this Court of various
questions relating to the interpretation of clauses 11 (h) (k) and (v),
14, 15(i), 16, 17 and 20 of the trust deed, which read as under :-
“Clause 11: For the accomplishment of the Trusts of these
presents and without prejudice to the generality of any
powers hereby or by law conferred or implied or vested in the
Trustees the following powers and authorities are hereby
expressly conferred on the Trustees, that is to say:-
(f) Subject to provisions of The Bombay Public
Trusts Act 1950 and other applicable provisions of
law to hire or take on lease or to purchase or
otherwise acquire any immovable or movable
property for all or any of the purposes of the said
trusts at such rents or hire on consideration and on
such terms and conditions and for such period and
with or without option for renewal or purchase as
the Trustees may think fit;
(h) To delegate by Power of Attorney or otherwise
to any Trustee or Trustees or other persons
whomsoever any power implied by law or conferred
by statute or vested in the Trustees by these presents
but the Trustees shall not be held liable or
responsible for the acts or defaults of any persons
or person but only for their own respective acts and
defaults;
(k) To appoint any proxy or proxies to attend and
vote at any meeting;
(v) To decide all questions arising in the
administration of the trusts including all questions
relating to the interpretation of these presents or
otherwise concerning or touching these presents or
to any clause or thing therein contained or touching
or concerning anything or matter relating to or
connected with or arising out of these presents or
the operation thereof, the decision of the Trustees
on all or any of the matters aforesaid shall be final.
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62 Ori.Sms.2029.11
Clause 14: If the Trustees hereby constituted or any of them
or the Trustees or Trustee appointed as hereinafter provided
shall die or desire to be discharged or refuse or become
incapable to act or is adjudicated insolvent or convicted of a
criminal offence involving moral turpitude and punished with
imprisonment exceeding six months or be absent from India
for a period of twelve months or more without leave of the
other Trustees in writing or absconding for a period of three
months or more without intimating his whereabouts then the
surviving or continuing Trustees or Trustee may subject to the
provisions of Clause 20 appoint for the time being any person
or persons in the place of the Trustees or Trustee so dying,
desiring to be discharged or refusing or becoming incapable
to act or adjudicated insolvent or convicted of a criminal
offence and punished with imprisonment as aforesaid or
being absent from India as aforesaid or absconding as
aforesaid.
Clause 15(i): Except where the Trustee is an Investment to
Trustee Company or Corporation the number of Trustees
shall at no time be less than three or more than eleven.
Clause 16: The Trustees viz.:
1. Mr.Kishor Kirtilal Mehta
2. Smt.Charu Kishor Mehta and
3. Smt.Rekha Haresh - - - Sheth
shall be permanent Trustees that is for the life time.
Clause 17 : The permanent Trustees shall have power to
appoint new or additional Trustee or Trustees who may be
appointed as permanent Trustee or Trustees or Trustee or
Trustees for a period of five years. The Trustee or Trustees
appointed for a period of five years shall cease to be Trustee
or Trustees on the expiry of the said period of five years and
the permanent Trustees shall have power from time to time to
appoint Trustee or Trustees for a period of five years in place
of such Trustee or Trustees ceasing to hold office as such
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63 Ori.Sms.2029.11
Trustee or Trustees from time to time, provided that the
Trustees so appointed for a specified period or term shall not
exceed more than 3.
Clause 20: Notwithstanding what is provided in Clause 17,
so long as Shri Kirtilal Manilal Mehta is living he shall have
power to appoint from time to time and reappoint and
continue the appointment of not more than five Trustees as
Trustees of these presents who will act as Trustee of these
presents for a period of five years and that after his death
Shri Vijay Kirtilal Mehta so long as he is living will have the
same power to appoint not less than five Trustees of these
presents. The appointment of majority of the Trustees shall be
as far as possible out of family members of Kirtilal Manilal
Mehta or out of branch or branches of such family members
of Kirtilal Manilal Mehta.”
77. Under clause 16, defendant No.2, the plaintiff and defendant
No.3 were the first trustees of the trust and were appointed as
permanent trustees for their lifetime.
th
The Assistant Charity Commissioner, by an order dated 8
August, 1978, directed the first defendant trust to be registered. The
order observes that the mode of succession to trusteeship of the said
trust is under clauses 17 and 20 of the trust deed. This order has
attained finality.
78. One Kirtilal Manilal Mehta was appointed as a permanent
trustee in the year 1986 in exercise of powers under clause 17. He
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64 Ori.Sms.2029.11
th
expired on 20 July, 1993. His eldest son – Vijay Kirtilal Mehta who
is also referred to in clause 20 was appointed as a term trustee for a
rd th
period of five years from 23 July, 1993. He died on 24 July, 2010.
79. Paragraph 61 of the Originating Summons reads as under :
“61. In light of the aforesaid facts and circumstances, the
Plaintiff submits that amongst the questions as listed
hereinabove, this Hon’ble Court be pleased to determine the
following questions:
a) Whether the expression “not less than five
trustees” as appearing in Clause 20 of the Trust
Deed dated 05.07.1978 of the Lilavati Kirtilal
Mehta Medical Trust means or implies the power
to appoint upto a maximum of five trustees, who
will act as trustees for a period of 5 years?
b) Whether the Permanent Trustees named under
Clause 16 of the Trust Deed are Permanent
Trustees for lifetime and are not susceptible to any
disqualification to which the trustees appointed
otherwise are, except such disqualification which
may render them inherently incapable of executing
the trust?
c) Whether an appointment for the time being of a
person in place of a Trustee suffering from any
disqualification under Clause 14 of the Trust Deed
dated 05.07.1978, is an appointment only for such
time that the disqualification continues, subject,
however to the unexpired term of the disqualified
Trustee?
d) Whether the power under Clause 11 (j) for
appointment of additional /new Trustees can be
resorted to till such time as such an appointment
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65 Ori.Sms.2029.11
is capable of being done under Clause 17 or
Clause 20 of the Trust Deed?
e) Whether Clause 11(j) of the Trust Deed permits the
appointment of Permanent Trustee/s, which is a
specific power as provided under Clause 17 of the
said Deed of Trust?
f) Whether the powers and authorities of the Trustees
listed in sub-clauses (a) to (zi) under Clause 11 of
the Deed of Trust are expressly conferred on the
“trustees”, i.e., the collective body of the Board of
Trustees of the Trust or on individual Trustees?
g) Whether the appointment of an power of attorney
holder under clause 11 (h) or a proxy under clause
11 (k) of the Trust Deed can be done only by the
collective body of the Board of Trustees or whether
the same can be done by an individual trustee?
h) Whether an power of attorney holder appointed
under Clause 11 (h) or a proxy appointed under
Clause 11 (k) of the Trust Deed can be delegated
discretionary duties or powers of a trustee
including, but not restricted to, the power to attend
/ discuss / participate / vote / pass a resolution /
constitute a quorum in a meeting of the Board of
Trustees of the said trust, or whether such power of
attorney holder or proxy can be delegated purely
ministerial acts only?
Items (i) and (j) pertain to interim reliefs and are, therefore, not
relevant at this stage.
80. The plaintiff only seeks the interpretation by this Court of the
provisions of the trust deed. Indeed, paragraph 51 of the Originating
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Summons states that the plaintiff desires the interpretation of the
provisions of the trust deed with regard to various aspects mentioned
therein. It is also important to note at this stage that in paragraph 51
of the Originating Summons, it is expressly stated that “there is a lot
of ambiguity and non-clarity with respect to certain provisions of the
trust deed with regard to” the aspects mentioned therein.
81. It is not necessary for the purpose of this Originating Summons
to deal with the allegations regarding the improper exercise of powers
by the trustees/erstwhile trustees as no reliefs on the basis thereof
have been sought.
82. Mr. Cama made stated that the plaintiff did not want to lead
any evidence. The learned counsel appearing for the defendants
supporting the plaintiffs also stated that they did not wish to lead any
evidence. Mr. Chagla and the other learned counsel appearing on
behalf of the contesting defendants stated that as the plaintiff did not
wish to lead any evidence, they do not desire to lead any evidence
either.
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83. I have come to the conclusion that this is not an appropriate
matter to be decided on an Originating Summons. There are several
reasons for this. Even assuming that these reasons, taken
independently, do not justify the Court refusing to entertain the
Originating Summons, taken together, they do.
84. The circumstances in which an Originating Summons may be
entertained are well settled. As I held earlier, the Court is not bound
to entertain an Originating Summons. This is clear from Rule 246 set
out earlier. It is sufficient to refer to the following observation from
the judgment of the Division Bench in Mrs. Lyla Darius Jehangir
(nee Ghaswala) Vs. Bakhtawar Lentin & ors. 2007 (2) LJSOFT 25 =
(2007)1 Mah LJ 544 :-
“9. At this stage, we may also refer to the provisions of the
Bombay High Court (Original Side) Rules, 1980 relating to
the Originating Summons. Rule 238 provides for an
application for the issue of originating summons in respect of
the matters contained therein, interalia, the question affecting
the rights or interest of the persons claiming to be devisee,
legatee or beneficiary under an instrument. The whole object
of this procedure for issuance of the originating summons is
to make a procedure available to the parties which is
inexpensive but at the same time in substance for
determination of the disputes as to construction of the written
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instrument. In the proceeding by way of Originating
Summons, the dispute is settled by the court, interpreting the
instrument and determining what the rights of the parties are.
Pratt,J. in Vithaldas Cursondas vs. Dulsukhbhai Vadilal Vol.
XXI The Bombay Law Reporter 972, while dealing with the
similar proposition under Rule 223 of the High Court Rules,
held that an originating summons is not a proper procedure
to be adopted where the disputed facts are of such complexity
as to involve considerable amount of oral evidence. This is
an action which should be confined to matters being capable
of decision in a summary way; not that it forbids the
questions of fact being determined on an originating
summons in all class of cases.”
To the same effect are the observations of the Division Bench
of this Court in the Parsi Panchayat case which I have quoted earlier.
85. I must preface a consideration of this aspect by mentioning that
it appeared to me to be quite clear that even the plaintiffs are of the
view that there is considerable ambiguity in respect of the said clauses
of the trust deed.
86. In paragraph 51 of the plaint, it is averred that there is a lot of
ambiguity and non clarity with respect to certain provisions/clauses of
the said trust deed and that the plaintiffs, therefore, desire the
interpretation of the provisions thereof.
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87. Although the plaintiffs have chosen not to lead any evidence
and have invited the Court to decide the Originating Summons on a
demurer, I am not inclined to do so. It is indeed normally the
plaintiff’s choice whether or not to lead evidence. That, however, is
in cases where the plaintiff is personally interested and stands to
benefit personally by the decision of the Court. This is not the case
here. The plaintiffs and most of the defendants are trustees. They are
interested in the effective and proper administration of the trust, but
are not beneficiaries of the trust. The consequences of a finding on a
demurer in a summary proceeding would not affect the trustees
personally, but would affect the beneficiaries of and the proper
administration of the trust.
Even if the parties had chosen to lead evidence it would make
no difference for, in my opinion, this is not a fit matter for the Court
to permit oral evidence in an Originating Summons. There are several
reasons for this which I will refer to.
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88. Mr. Chagla relied upon the observations of a Division Bench of
st
this Court in an order and judgment dated 21 March, 2009 in AO
No.22 of 2009 in Notice of Motion No. of 2009 in SC Suit (Stamp)
No.1511 of 2009 along with Civil Application No. 22 of 2009. The
plaintiffs sought declarations, inter-alia , upon what they submitted
was the correct interpretation of the clauses. The Division Bench in
paragraph 24 held :
“The suit is for declaration and interpretation of clauses 17
th
and 20 of the Trust Deed dated 5 July, 1978 and interim
relief/injunction. The prayers of interim relief/injunction are
based upon the same. These clauses need to be interpreted
first before granting any declaration of injunction in favour
of the Appellant. It is a case of interpretation of clauses of
the documents. The whole documents need to be considered
along with surrounding circumstances to understand and to
give clear meaning to those clauses including the intention
and object of the documents. We need to be considered the
intent and object of the clauses independently and jointly
also. The document is of the year 1978. Therefore, rival
pleadings with other document and evidence with regard to
the same is necessary to be gone into in detail. In these
circumstances, in our view, the grant of only interim relief by
interpreting these clauses at such interlocutory stage without
due trial will affect the rights of both the parties.”
89(A). Even assuming that I am not bound by these
observations, I cannot ignore them. The Division Bench has expressly
held that the interpretation of the clauses would require a
consideration of the entire trust deed “along with surrounding
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circumstances” and that to arrive at a clear interpretation of these
clauses, the intention and object of the documents must also be
considered. It was also held that evidence is necessary with regard to
the same, meaning thereby, the interpretation of the document based
inter-alia on the surrounding circumstances and the object of the
document. Even assuming that the doctrine of precedent does not
apply qua this order, I am certainly not inclined to ignore it. To do so
would, in effect, suggest that the Division Bench was entirely wrong
in its assessment of the matter.
(B) The fact that the suit was ultimately dismissed by an
th
order and judgment dated 16 November,2009, in an application
under section 9-A of the Civil Procedure Code, would not affect these
observations in any manner whatsoever. These observations were not
in respect of the merits of the dispute. They pertain to the
requirement of evidence in interpreting the clauses of the trust deed.
The Division Bench itself did not interpret the clauses, but merely
came to the conclusion that the interpretation thereof would require
consideration based on evidence, inter-alia , of all the surrounding
circumstances. The fact that the suit was dismissed for want of
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jurisdiction, therefore, does not affect these observations in any
manner.
90. I am, in any event, in respectful agreement. I find, even
independent of these observations, that the clauses are riddled with
complexities which can be resolved only upon an in depth analysis of
the same, after considering all available evidence, documentary as
well as oral.
91. Further, as I will demonstrate while dealing with the clauses of
the trust deed, to put the case of the contesting defendants at its
lowest, the clauses are capable of more than one interpretation. If that
be so, clause 11(v) of the trust deed provides for the resolution of any
difficulty that may arise on account of the interpretation of the trust
deed. As I have held earlier, clause 11(v) does not oust the
jurisdiction of the Court to interpret the provisions of the trust deed.
It is, however, relevant in the exercise of discretion by a court
especially in an Originating Summons.
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92. Though clause 11(v) does not bar the jurisdiction of the Court
to entertain the Originating Summons, it is one of the factors for my
refusing in the facts and circumstances of this case, to exercise my
discretion by entertaining the Originating Summons. The Court would
give due regard to the interpretation placed on the provisions of a trust
deed if it is a genuine bona-fide exercise of power by the trustees. The
Court would hesitate to interfere with the trustees interpretation of the
terms of the trust deed. If, however, the interpretation is perverse or
mala fide , or even otherwise motivated, the Court will not find itself
bound by the same. Further, if a clause requires no interpretation, but
merely requires to be applied, the Court will interfere if under the
guise of interpretation, the trustees change the very object of the trust
or manner in which they are bound to act thereunder.
93. I am conscious of the fact that there is considerable animosity
among the trustees which has led to a spate of litigations which
undoubtedly would affect the smooth functioning of the trust. That,
however, would not justify or warrant a court virtually negating the
effect and operation of clause 11(v). Whether the interpretation
placed by the trustees is bona fide or not must be decided in each
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case. A decision in this regard itself may well require evidence. A
presumption in these proceedings that every interpretation has been
and will, in future, be dishonest and mala fide is not warranted
94. The determination of whether the exercise of such power is
genuine and bona fide or not would itself require consideration in
appropriate proceedings. If, for instance, it is held in any proceedings
that the majority of the trustees have not exercised their powers bona-
fide it may well be a ground for entertaining an Originating
Summons.
95. This brings me to Mr. Cama's interpretation of the said clauses.
I believe what follows also supports the reasons I have just furnished
for refusing to entertain the Originating Summons.
96. Mr. Cama submitted that clause 11(j) is only a residuary power
for the appointment of trustees. He submitted in the alternative that
clause 11(j) is subject to and circumscribed by clauses 14 and 17. In
other words, according to him, clause 11(j) is only a general reference
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to the power of the trustees to appoint trustees and does not by itself
actually confer such power upon the trustees. The power is conferred
by clauses 14 and 17. The actual exercise of powers, therefore, can be
only under clauses 14 and 17 and not under clause 11.
97. The plain language of the opening part of clause 11 does not
support either of these submissions. The opening of clause 11
stipulates that the powers are “expressly conferred” therein and that
the same are “without prejudice to the generality of any powers
hereby.... conferred or implied or vested in the trustees”. Clause 11(j)
is one such express power conferred upon the trustees. Moreover, the
power is conferred upon the trustees in general and not to any
particular type of trustees viz. a term trustee or a permanent trustee.
98. The plain language of clause 11, therefore, at least appears to
confer upon the trustees, the power to fill any vacancies or to appoint
any additional trustee or trustees.
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99. It was, however, contended that this construction would be
contrary to the provisions of clause 17 for it would render ineffective
the power of the permanent trustees under clause 17.
100. That, however, is one way of looking at it. The other way of
looking at it is that if the plaintiff’s construction is accepted, it would
render clause 11(j) nugatory. If the intention was to circumscribe the
powers under 11(j) as contended by the plaintiff normally the trust
deed would have provided for the same. It is not inconceivable that
the Settlor intended appointments to be made in more than one
manner.
101. I do not for a moment suggest that the plaintiff’s submissions
are without any force. I, however, find that in view of the language of
the said clause, a construction contrary to the plain meaning would
require to be established in a trial and not in a summary proceeding.
102. Mr. Cama then submitted that if the Court finds that there is a
conflict between the two clauses, a finding to that effect must also be
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given for the parties would then know where they stand and adopt
suitable proceedings to meet the situation.
103. This submission is based on the premise that merely because
the working of a trust deed may result in conflicting decisions, it
necessarily implies that the provisions thereof are in conflict with
each other. As I have already noted, even a decision as to whether the
provisions are in conflict with each other would be required to be
tested in a trial and not in a summary proceeding. I appreciate that the
working of a trust may well be hampered if the powers under clause
11(j) and clause 17 are exercised concurrently. There is a possibility
that the permanent trustees who may be in a minority may appoint a
trustee and, at the same time, the other trustees who are in a majority,
may appoint another person in the same place. That by itself,
however, does not necessarily decide the question of priority between
the clauses. In other words, the mere possibility of conflicting
decisions pursuant to the exercise of concurrent powers by itself is of
no assistance in the present case in interpreting the provisions of the
trust deed. Nor does it necessarily mean that one clause is redundant.
The parties are not without a remedy in such a situation. They have
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the remedy of approaching the Charity Commissioner for appropriate
directions in such a situation.
104. The question whether the Settlor could never have intended by
clause 11(j) to negate the effect of clauses 14 and 17 must await a
decision in appropriate proceedings. It could equally be contended
that it could never have been the intention of the Settlor to negate the
effect of clause 11(j), especially in view of the preface to the sub
clauses of clause 11.
105. Mr. Cama submitted that clauses 11(j), 14 and 17 can be read
harmoniously only by accepting his submissions. In that event, under
clause 17, only the permanent trustees would have the power to make
appointments and all the trustees would have the power to make
appointments under clause 14. On the other hand, if the interpretation
is accepted, there is bound to be a conflict in the administration of the
trust.
106. As I have noted earlier, I do not for a moment suggest that the
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submission is without substance. The construction in this regard,
however, must await a decision in an appropriate proceeding after
evidence.
107. It was further submitted that an appointment made under clause
14 can only continue till the disabilities referred to therein continue.
The submission was based on the words “ for the time being ” in clause
14.
108. I find it difficult, however, to accept the interpretation,
especially in a summary proceeding. A view to the contrary is not
improbable. Clause 14 refers to seven disabilities. The phrase “ for
the time being ” is not consistent with each of these contingencies. It
certainly is not consistent with a trustee who dies. It was, therefore,
contended that the phrase must be read only in respect of those
contingencies with which it is consistent.
109. I cannot agree that the phrase “ for the time being ” is not
consistent with any other interpretation of clause 14. The clause can
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be interpreted to avoid any inconsistency between the phrase and the
contingencies. It may well apply to the person who is appointed
under clause 14 and not to the trustee who suffers the disqualifiation.
For instance, if the appointment is in respect of a term trustee, the
appointment under clause 14 may well be held to continue only for
the unexpired term of the trustee whose vacancy is sought to be filled.
Thus, for instance, if a term trustee incurs a disqualification on
account of the contingencies mentioned in clause 14, after the expiry
of three years, the person appointed in his place as a term trustee,
would continue only for the unexpired period of two years. I hasten
to add that I do not suggest this to be the correct interpretation. I have
furnished this illustration only to indicate that the construction of
clause 14 is not as clear as the plaintiff suggests.
110. Ms. Iyer, supporting the plaintiff submitted that any
interpretation other than the one suggested by the plaintiff would lead
to absurdity. She attempted to illustrate this in a case where a trustee
is convicted of a criminal offence involving moral turpitude and a
punishment with imprisonment exceeding six months, but such trustee
is acquitted in appeal. She submitted that it could never have been the
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intention of the Settlor that even if the trustee is acquitted in appeal
the disability would continue.
111. The illustration is only indicative, at the highest, of an
unfortunate situation. It does not support the interpretation of clause
14. The Settlor may well have intended the administration of the trust
to continue unhindered by or on account of any personal difficulties
of a particular trustee. The Settlor may well have intended that the
appointment of the trustees cannot await or be dependent upon
multiple decisions. Otherwise, it could well mean that if in a further
appeal, the conviction is upheld, the trustee must once again suffer a
disqualification. This would lead to uncertainty in the constitution of
the Board of trustees and hamper the functioning of the trust.
The proper administration of a trust is more important that the
right of a person to hold the office a trustee when he is not even a
beneficiary.
112. The question of interpretation cannot be decided, at least, in the
present case, merely on the basis of illustrations. Illustrations can be
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furnished in support of a contrary interpretation of the clause as well.
For instance, one of the contingencies in clause 14 is where a trustee
desires to be discharged or refuses to act as a trustee. It can hardly be
suggested that his disqualification would cease to operate at his sweet
will for otherwise it would mean that the trustee could, at a given
stage, desire to be discharged or refuse to act and subsequently
withdraw his desire to be discharged or refusal to act. This could go
on ad-infinitum. It can hardly be suggested that the Settlor intended
the trustees to have such latitude.
113. Faced with this, Mr. Cama submitted that the words “ for the
time being ” must be read only with the sixth contingency viz. “A
trustee absenting himself from India for a period of two months or
more, without the leave of the other trustees in writing.” He stated
that this is the only contingency/situation that arises presently.
114. That is impermissible. The clause must be read as a whole. A
clause cannot be interpreted by effectually rewriting it by deleting
parts thereof based on what may have transpired from time to time.
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Such events by themselves are irrelevant to the process of
interpretation which must be based on a reading of the clause as a
whole as it stands. Moreover, it is equally possible to contend that the
Settlor intended that a person cannot absent himself for more than
twelve months from India without leave of the other trustees in
writing and return to India as and when he wants after any duration of
absence and claim to be a trustee again. Such an interpretation, in
fact, would harm the working/administration of the trust.
115. It is important to note Mr. Cama’s alternative submission that
the words “ for the time being ” indicate that the appointment
thereunder is only till the regular appointment is made under clause
17 for otherwise it would render the power under clause 17 nugatory.
Thus, the plaintiff herself is in a quandary whether the words “for the
time being” apply qua the trustee suffering the disqualification under
clause 14 or the trustee appointed in his place in exercise of powers
under clause 14. I have already dealt with clause 14 qua clause 11(j).
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116. Ms. Iyer submitted that the words “ for the time being ” in clause
16 indicated that a permanent trustee who is appointed for his life-
time can never suffer a disqualification under clause 14 for the
appointment is for his life-time. She submitted that this Court ought
to hold that there are three kinds of trustees viz. term trustees,
permanent trustees and permanent trustees appointed for their life-
time and that permanent trustees appointed for their life-time cannot
be removed under clause 14.
117. Prima facie, at least, there is no distinction between permanent
trustees under clause 16 and other permanent trustees. The last line in
clause 16, by the use of the words “ that is ”, seems to indicate what a
permanent trustee is and does not differentiate between a permanent
trustee under clause 16 and other permanent trustees. Moreover,
clause 14 does not draw a distinction between trustees who suffer a
disqualification on account of what it stated therein. The opening
words “ If the trustees....are not qualified ” apply to all trustees. There
is nothing in clause 14 that indicates that they apply to certain trustees
and not to others. Further, considering the nature of the grounds for
disqualification there is every possibility that the settlor intended them
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to apply to all the trustees.
118. A trustee who suffers a disqualification under clause 14 is not
removed by the other trustees. The trustee suffers a disqualification
by virtue of the operation of clause 14. Such a trustee, in effect,
ceases to hold office as a trustee. Thereupon, his position is filled up
by another in exercise of powers under the trust deed.
119. What I have said about clauses 11(j) and 17 viz., that the
interpretation would require evidence, would equally apply in respect
of clause 14.
120. Mr. Cama submitted that the words “ not less than five trustees ”
in clause 20 must be read as “ not more than five ”. The submission
was based on a combined reading of clauses 15, 16 and 17.
121. The plaintiff invites the Court to rewrite clause 20 by
substituting the words “ not less than five ” with the words “ not more
than five ”. This, in effect, was the view of the plaintiff and the
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defendants supporting the plaintiff. This is clear from what is stated in
paragraphs 16 and 20 of the plaint. In Suit No.1795 of 2008, the
plaintiff expressly contended that there is an error/mistake in the
phraseology “ not less than five trustees ” appearing in clause 20 of the
trust deed. This would have required the plaintiff to adopt
proceedings for rectification of the trust deed. Probably realising the
difficulty in doing so, the averment in the present Originating
Summons is this :
“However, the Plaintiff has thereafter sought the opinion of
an eminent Jurist who has opined that the expression “not
less than five trustees” in Clause 20 of the Trust Deed is not
an error but a way of expressing that the powers to appoint
Trustees would be upto a maximum of five Trustees, so as to
give true effect to and rely in its entirety.”
122. The plaintiff has rightly not annexed the opinion. The plaintiff
has, however, not offered any explanation as to how the words “ not
less than five trustees ” was the Settlor’s way of expressing that the
power is restricted upto a maximum of five trustees. The plaintiff
was, de-hors the opinion, entitled to analyze the clause to this effect.
She did not even attempt to do so.
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123. What was contended, however, is that the submission is
supported firstly by the provision in clause 20 that the Settlor’s son
Vijay K. Mehta will have “the same power to appoint”. It was
submitted that the words “ the same power to appoint ” establish that
the power was limited to the Settlor’s power, which was to appoint
not more than five trustees.
124. The reliance upon the words “ the same power to appoint ”
would, at the highest, support the contention that the words “ not less
than five years ” is an error. They do not support the interpretation
placed by the plaintiffs upon the words “ not less than five years ”. The
words “ the same power to appoint ” are not rendered otious by
retaining the words “ not less than five ”. The words “ the same power
to appoint ” are also consistent with the interpretation that the power
of the Settlor’s son to appoint is not limited to a one-time
appointment, but is a continuing power which can be exercised from
time to time.
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125. It is also contended that if the plaintiff’s interpretation is not
accepted, it would render the power under clause 17 nugatory.
126. Even assuming that the exercise of powers under clause 20
affects the power of the permanent trustees under clause 17, that by
itself would not support the plaintiff’s interpretation of the clause.
The Settlor may well have intended his son to have overriding
powers. Mr. Madon rightly relied upon the opening words of clause
20 “ Notwithstanding what is provided in clause 17.... ”. The opening
words would be consistent with the power in the Settlor’s son to
appoint either not less than five trustees or even not more than five
trustees.
127. Mr. Cama submitted that it is inconceivable that the Settlor
would grant his son greater powers than he reserved unto himself.
128. The submission is obviously unsustainable. I see no reason to
presume that the Settlor could never have intended his son to have
wider powers. It is not uncommon that parents confer greater powers
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and benefits upon their children than they have enjoyed themselves.
In any event, it is difficult in a summary proceeding to decide such
questions relating to the intention of a Settlor. I am not inclined to
speculate on this issue.
129. Mr. Cama submitted that if the plaintiff’s interpretation of
clauses 15, 16, 17 and 20 is not accepted, it would render the entire
scheme under clauses 16, 17 and 20 unworkable. The argument is
this. Clause 15 provides for a maximum of 11 trustees. Three
permanent trustees are appointed under/named in clause 16. Under
clause 17, the permanent trustees are entitled to appoint three term
trustees. Thus, clauses 16 and 17 together provide for the
appointment of six trustees. It follows, therefore, according to the
plaintiff, that under clause 20 the Settlor’s son was entitled to appoint
not more than five trustees.
130. Absent any evidence to support this interpretation, to accept it
would be pure speculation. It could equally be argued that the
vacancies may not be filled up. It is possible that the vacancies may
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not be filled up. Clauses 14 and 17 do not compel the trustees to fill
up vacancies. Under clause 15, there can be a minimum of three
trustees. It is not inconceivable, therefore, that at a given point of
time, there may be three trustees resulting in a vacancy of eight
trustees. Clause 20 is, therefore, not unworkable.
131. Mr. Cama submitted that if the Settlor’s intention was to entitle
his son to appoint more than five trustees, it would not have been
necessary to use the words “ not less than five ”. He submitted,
therefore, that the Court ought to read the words “ not less than five ”
as “ not more than five ”.
132. Firstly, that may call for a rectification of the trust deed. I
cannot see how that entitles the Court to interpret a deed contrary to
its express terms. Secondly, if it entitled the Settlor’s son to appoint
even all the trustees, so be it. That was the Settlor’s prerogative. He,
therefore, prefaced the clause with the words “Notwithstanding what
is provided in clause 17 ”. Thirdly, even assuming that a conflict
would arise in the event of exercise of powers under clause 20 by the
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Settlor’s son and by the other trustees under clause 17, that would not
be of any assistance in interpreting the trust deed contrary to its plain
language. Parties would then have to adopt proceedings to resolve the
issue. I do not wish to speculate on the various methods by which the
dispute could be settled.
133. The suggestion that an interpretation to the contrary would
mean that the Settlor’s son was bound to appoint not less than five
trustees is unsustainable. Clause 20 only confers the power upon the
Settlor and his son to appoint trustees and did not compel them to do
so. This is clear from the use of the words “ shall have power to
appoint ” in respect of the Settlor and the words “ will have the same
power to appoint ” in respect of the Settlor’s son. In other words, they
had the power to appoint trustees but were not bound to exercise the
power.
134. It is also important to note that the power of appointment under
clause 14 is also subject to the provisions of clause 20. Clause 14
expressly provides that the trustees may appoint persons in the place
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92 Ori.Sms.2029.11
of the trustees in the circumstances enumerated therein “ subject to the
provisions of clause 20 ”.
135. There is yet another reason why I refrain from interpreting
clause 20. The Settlor and his son the said Vijay Kirtilal Mehta have
expired. Several proceedings have been filed to challenge the
exercise of the power by Vijay K. Mehta under clause 20. Those
proceedings are pending. It would be appropriate that clause 20 is
interpreted in such proceedings. An interpretation of the clause even
in favour of the plaintiff would not necessarily put an end to the
proceedings which have been filed. It is possible that the proceedings
may be decided against the plaintiff on other grounds as well such as
delay, limitation or even for default.
136. The validity of clauses 11(h) and (k) was not questioned. Only
the interpretation thereof was sought. It is not necessary, therefore, to
consider the validity of the clause 11(h) and 11(k). I do not think it
was even suggested by the contesting defendants that any individual
trustee can exercise the powers under any of the provisions of the trust
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93 Ori.Sms.2029.11
deed per se and without the authority of the other trustees. I have
proceeded on the basis that clause 11 does not confer any power upon
an individual trustee regarding the administration of the trust without
authority. In other words, a particular trustee cannot act on behalf of
all the trustees without authorization.
It is not necessary, therefore, to consider the judgments on the
question as to whether trustees can delegate their powers as trustees
with respect to the administration of the trust and whether the
provisions of section 47 of the Indian Trusts Act apply to public trusts.
In any event, in the facts of this case, it would be appropriate to
leave the question even in this regard to be decided in the substantive
proceedings which have already been adopted.
137. Clause 11(k) entitles the trustees to appoint any proxy or
proxies to attend and vote at any meeting. The clause does not
specify the nature of such meeting. It is difficult, therefore, in a
Originating Summons to accept the contention that the language of
the clause limits it to meetings other than the meetings of the
trust/trustees to discharge the function of the trust and that it is
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94 Ori.Sms.2029.11
restricted only to representing the trust at meetings with third parties.
Throughout the trust deed, the term “meeting” is used with respect to
the meetings of the trustees. For instance, clause 12(e) uses the
expression “the quorum for a meeting of the trustees.....” At the cost
of repetition, I am not adjudicating the legality of this clause. Mr.
Cama did not contend that a deed cannot permit a trustee to delegate
his duties as a trustee. His contention was that clause 11(k) does not
permit it. He, in fact, submitted that such a clause would be an
exception to the general law which is to the contrary. The reliance
upon Rule I(iv) and IV of the Rules framed by the trustees is of no
assistance in interpreting clause 11(k). Mr. Cama submitted that the
fact that these Rules confer such powers indicates that the power is
not to be found in the trust deed. It is not possible to interpret the
provisions of a trust deed contrary to its plain language on the basis of
the rules framed by the trustees. A rule may well be framed although
it provides what the trust deed also stipulates.
138. There is yet another reason to refrain from interpreting clauses
11(h) and 11(k). Application No.17 of 2006 was filed under Section
41D of the BPT Act before the Joint Charity Commissioner which
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95 Ori.Sms.2029.11
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was disposed of by an order and judgment dated 25 September,
2009. The Joint Charity Commissioner specifically dealt with clause
11(h) in paragraphs 249 to 254 of the judgment. It was held that there
was no bar under the trust deed to delegate powers to the trustees
individually.
The plaintiffs challenged this order by filing Writ Petition
No.9501 of 2009 which was disposed of by an order and judgment
nd
dated 2 March, 2010. The learned Judge dismissed the Writ Petition
holding that the order was not without jurisdiction and did not require
any interference.
Appeal No.268 of 2010 filed by plaintiff No.1 against this
judgment was dismissed by an order and judgment of the Division
st
Bench dated 1 December, 2010. The Division Bench held that the
Joint Charity Commissioner had given detailed reasons; that the order
cannot be said to have been made without jurisdiction; that the
reasons can by no stretch of imagination, be said to be perverse or
impossible and that, therefore, the learned single Judge was justified
in not interfering with the order.
It is important to note that this judgment has been challenged
by the plaintiff before the Supreme Court. One of the questions is as
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96 Ori.Sms.2029.11
follows :
“(iv) Without prejudice to (a), (b) and (c) above,
whether a delegation by co-trustees of their powers (as
here sought to be made) in favour of one of themselves, is
impermissible, null and void ab initio, the same being in
breach of the instrument of trust and of the provisions of
the Indian Trusts Act.”
The question, therefore, fell for consideration in substantive
proceedings. The question is pending before the Supreme Court. It
would not be proper, therefore, for this Court even otherwise to
entertain the Originating Summons on this question.
139. The contesting defendants relied upon the minutes of the
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meeting dated 6 October, 2004. The plaintiff and defendant No.12
attended the meeting. The Settlor’s son – the said Vijay K. Mehta
also attended the meeting on behalf of himself and as the constituted
attorney of five other trustees. The plaintiff and those supporting her
did not object to Vijay K. Mehta appearing as the constituted attorney
of the other trustees. This would be an important circumstance
indicating how the parties themselves interpreted the provisions under
clauses 11(h) and 11(k).
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97 Ori.Sms.2029.11
140. Mr. Cama, however, submitted that these meetings have been
challenged. He submitted that the minutes of the meeting were
fabricated. All the more reason, therefore, that the issue cannot be
decided in summary proceedings in an Originating Summons.
Questions of fabrication must be left to be decided in a trial.
141. Mr. Chalga submitted that an Originating Summons is normally
filed before a litigation is commenced. He submitted that in the
present case, there are innumerable proceedings between the parties
and that this Originating Summons has been filed only subsequently.
142. I see no reason why an Originating Summons cannot be filed
even if the parties have commenced litigation. Indeed, in many cases
it would be desirable to decide issues in an Originating Summons, if
they appropriately fall for consideration in an Originating Summons,
even if litigation is pending. Ending litigation is as important as
presenting it. It would be to the benefit of the administration of a trust.
This, however, would depend on the facts of each case. The Court
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98 Ori.Sms.2029.11
would not, as an absolute rule, bar the filing of an Originating
Summons merely because parties have already filed proceedings.
143. It is also pertinent to note that change reports are pending
before the Charity Commissioner and have been directed to be
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decided expeditiously by the said order and judgment dated 27
February, 2009 in First Appeal No.2667 of 2008 and other related
First Appeals.
144. In this view of the matter, it is not necessary to consider Mr.
Chagla’s submission that this Originating Summons is barred on the
ground of delay or issue estoppel.
145. In the circumstances, the Originating Summons is dismissed.
There shall, however, be no order as to costs.
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