1. There is in this city a public trust known as Shrimati Pahunchbai Deepchand Hinduja Trust. It seems it is registered under the provisions of the Bombay Public Trusts Act, 1950, and it is managing two educational institutions in this city.
2. It is admitted that the plaintiff and defendants Nos. 1 to 3 are trustees of this public trust.
3. On February 17, 1959, a meeting of the trustees was held and it is the case of the plaintiff that defendant No. 4 was set up by the other defendants as having been appointed as the managing trustee in that meeting, although in the agenda of that meeting there was no question or subject on the appointment of defendant No. 4 as the managing trustee. This, according to the plaintiff, was done without his consent and concurrence,. although he was present in the said meeting.
4. On March 16, 1959, the plaintiff instituted the present suit. In para. 3 of his plaint he stated that in the meeting of February 17, 1959, no other business was transacted except the question of the termination of services of a teacher by name Bolakani. In para. 4 of the plaint, the plaintiff stated that the alleged appointment of defendant No. 4 as a trustee was without his consent and concurrence, that he vehemently opposed the same and that defendant No. 4 was an improper person for such a post. In para. 5 of his plaint, plaintiff referred to a letter received by him from defendant No. 1, informing him that defendant No. 4 had been authorised to act as the managing trustee and that he had been given full powers to deal with the teachers and the entire administration and that his appointment was proper and legal. In para. 9 of the plaint, the plaintiff claimed the following reliefs:-
(a) It may be declared that the appointment of the defendant No. 4 as trustee of the Shrimati Pahunchbai Deepchand Hinduja Trust is without the consent and concurrence of the plaintiff and consequently illegal, inoperative and not binding.
(b) It may be declared that the appointment of defendant No. 4 is illegal as he is an improper person to hold such a post in the interests of public trust.
(c) It may be declared that the defendants Nos. 1, 2 and 3 cannot legally appoint a new trustee without the consent of the Charity Commissioner and order of the Court.
(d) The defendant No. 4 be permanently restrained from acting and/or claiming as trustee expressly or impliedly of the said trust,
(e) The defendants Nos. 1, 2 and 3 and their agents be permanently restrained from giving any effect to the alleged resolution appointing the defendant No. 4 as trustee of the said trust.
(f) The plaintiff may have such further and other reliefs as the circumstances of the case may require.
5. The trial Court raised a preliminary issue as follows:-
Whether in the absence of the sanction of the Charity Commissioner under section 50 of the Bombay Public Trusts Act, this suit is maintainable?
6. In the course of the arguments before the trial Court, reliance was placed by the plaintiff on a decision of this Court reported in Nilkanth Devrao v. Ramkrishna Vithal I.L.R (1921) 46 Bom. 101 : 23 Bom. L.R. 876. The learned trial Judge distinguished that case and was of the view that it was inapplicable to the facts before him. He accordingly held that the consent of the Charity Commissioner before the filing of the suit; should have been obtained and that as that had not been done in the present case, the suit was not maintainable. The suit was accordingly dismissed on July 1, 1959.
7. This is the first appeal by the original plaintiff.
8. It seems to me that there is hardly any difference between the reliefs claimed in the present suit and those claimed in the case reported in Nilkanth Devrao v. Ramkrishna Vithal. The learned Judge at one stage was prepared to hold that in this suit there was no relief claimed for the removal of a trustee. He further held that while Section 92 of the Code of Civil Procedure referred only to the removal of a trustee, Section 50 of the Bombay Public Trusts Act referred to the removal of a trustee or a manager and this, in his view, distinguished the present case from that reported in Nilkanth Devrao v. Ramkrishna Vithal.
9. The learned trial Judge was inclined to construe the plaint as containing a relief for the removal of the manager. This is what the learned trial. Judge has-stated:
Even if it is assumed for the time being that the appointment of the 4th defendant as a trustee is illegal and without authority, even then in asking that the 4th defendant should be restrained from acting in connection with the management of the public trust in question, the plaintiff in fact is asking for removal of the manager to say the least. The contents of paragraph 3 of the plaint clearly show that the plaintiff alleges breaches of public trust in connection with this trust. Therefore, there is an allegation that there is a breach of public trust and the relief that is prayed for is for the removal of the manager.
I do not think that the plaintiff has anywhere in the plaint stated that defendant No. 4 had been appointed only as a manager. In para. 5 of the plaint the plaintiff refers to the correspondence between him and defendant No. 1, and more particularly to the letter exh. B which he had received from defendant No. 1, in which he was informed that defendant No. 4 had been authorised to act as the managing trustee. I should think that there is a good deal of difference between a managing trustee and a manager. The expression 'trustee' has been denned in the Bombay Public Trusts Act. It means:
a person in whom either alone or in association with other persons, the trust property is vested and includes a manager',
while the expression 'manager' is denned as meaning
any person (other than a trustee) who for the time being either alone or in association with some other person or persons administers the trust property or any public trust and includes-
(a) in the case of a math, the head of such math,
(b) in the case of a wakf, a mutavalli of such wakf,
(c) in the case of a society registered under the Societies Registration Act, 1880, its governing body, if the property of the society is not vested in a trustee.
So, while a trustee may, in conceivable cases, be also a manager, a manager can in no circumstances be a trustee; and in this case we are concerned with the case made out by the plaintiff against defendant No. 4 that the latter was set .up by the other defendants as a managing trustee.
10. In Nilkanth Devrao v. Ramkrishna Vithal the plaintiffs as the hereditary Muktesars (trustees) of a temple sued for a declaration that defendants Nos. 1 to 4 were not properly appointed trustees of the temple and for an injunction restraining them from interfering with the plaintiffs in the management of the .affairs of the temple. It was held
the suit was outside the scope of that section (s. 92 of the Code of Civil Procedure) as the plaintiffs were not suing on account of any breach of trust as contemplated by it, nor were they applying for any direction of the Court for the administration of trust.
11. Mr. Advani, the learned Counsel for respondents Nos. 1, 3 and 4, contended that the plaintiff introduced his case in his plaint with the allegations that there were breaches of trust. In particular, my attention has been called to para. 2 of the plaint. Paragraph 2 of the plaint states:
That during past many months the defendants committed many irregularities and illegalities in affairs of the Trust which the plaintiff brought to the notice of the defendants from time to time, but the defendants paid no heed to the same and continued to commit irregularities and illegalities in the management of the Trust.
Now, this was not the paragraph upon which reliance was placed by the learned trial Judge when he expressed the view that there was an allegation of the breach of trust. He relied upon para. 3 of the plaint. Towards the end of para. 3, it is stated
The plaintiff, besides this question (regarding the appointment of defendant No. 4) informed the defendants by same letter about various irregularities and illegalities committed by the defendants in the management of the Trust and the plaintiff reserves his right to proceed against the defendants in respect of other irregularities and illegalities mentioned therein by appropriate legal remedy.
I have looked into the averments made in para. 3 of the plaint and apart from what is stated towards the end of that paragraph, there is no averment at all as to the alleged breach of trust. It is true that the plaintiff has stated that various irregularities and illegalities had been committed by the defendants in the management of the trust; but it needs hardly be stated that these irregularities and illegalities, assuming that they had been committed, as stated by the plaintiff, have no bearing upon nor lead to the reliefs which have been claimed in the suit. In fact, plaintiff has himself made it clear that he would take some other appropriate legal remedy in respect of the various irregularities and illegalities committed by the defendants in the management of the trust. Therefore, only because there is some sort of averment as to the irregularities. and illegalities committed by the defendants in the management of the trust,, it does not mean that there was any appropriate case of breach of trust made out in the plaint so as to entitle the plaintiff to the reliefs claimed in the prayer clause of the plaint, It is not clear why these statements, which I find in paras. 2 and o of the plaint,' have been made, except for prejudicing the case of the defendants; but, in any event, I do riot think that they are germane for finding out whether there has been any breach of a public trust within the meaning of Clause (1) of Section 50 of the Bombay Public Trusts Act. Section 50 of the Bombay Public Trusts Act provides:-
In any case-
(i) where it is alleged that there is a breach of a public trust,
(ii) where a direction is required to recover possession of a property belonging to a public trust...from any person including a person holding adversely to the public trust, or
(iii) where the direction of the Court is deemed necessary for the administration of any public trust,
the Charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit... to obtain a decree for any of the following reliefs:-
Before Section 50 is attracted, plaintiff must have made out a case that there was a breach of public trust as mentioned in Clause (i) or that a direction by the Court was necessary to recover possession of the property belonging to the public trust as mentioned in Clause (ii) or that a direction of the Court was deemed necessary for the administration 01 any public trust as contemplated by Clause (in) of Section 50.'
12. Mr. Advani also contended that the substance of the case made out in the plaint was that the plaintiff was seeking a direction of the Court; for the administration of the public trust, inasmuch as he was contending that the appointment of defendant No. 4 as a managing trustee or trustee was illegal and, therefore, he had nothing to do with the administration of the public trust.
13. It seems to me that the plaintiff has not claimed any direction from the Court for the administration of the public trust. His claim is a limited one and he wants only a declaration that the appointment of defendant No. 4 as a trustee is illegal, because it was made without his consent and concurrence. If the plaintiff has claimed that the appointment of defendant No. 4 as a trustee is illegal because of want of his consent and concurrence, then I do not see how the relief which he has claimed would be for the administration of the public trust of which he is a trustee along with defendants Nos. 1 to 3.
14. As I have already stated, it is difficult to distinguish the present case from the case reported in Nilkanth Devrao v. Ramkrishna Vithal, and I am, therefore, bound to follow that decision and hold that the present suit is not) barred by the provisions of Section 50 of the Bombay Public Trusts Act. Further, Section 50 of the Act contemplates a suit either by a Charity Commissioner or two or more persons having an interest in the trust. There is a definition of the clatise 'person having interest' in the Act itself. Section 2(10) of the Act defines the expression 'person having interest' as follows:-
'person having interest' includes-
(a) in the case of a temple, person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple, or who is entitled to partake or is in that habit of partaking in the distribution of gifts thereof,
(b) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs,
(c) in the case of a wakf, a person who is entitled to receive any pecuniary or other benefit from the wakf and includes a person who has right to worship or to perform any religious rite in a mosque, Idgah, imambara, dargah, maqbara or other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf,
(d) in the case of a society registered under the Societies Registration Act, 1860, any member of such society, and
(e) in the case of any other public trust, any beneficiary;
If a person having an interest includes a beneficiary in the case of a public trust as the present one, I do not see how a suit, which is filed by a person, who is admittedly a trustee, can be regarded as a suit contemplated by the provisions of Section 50 of the Bombay Public Trusts Act,
15. it was suggested that a trustee was a person having an interest in the trust; but regard being had to the definition of the clause 'person having- interest' it seems to me that the definition, wide as it, is, does not include a trustee. A trustee, as I have already stated, means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager, while the person having an interest in the case of a public trust, as the present one, includes a beneficiary. Therefore, it seems to me that, a suit of the present nature which has been filed by a trustee against the other trustees and against another person who has; been set up as a trustee, is not contemplated by the provisions of Section 50 of the Bombay Public Trusts Act.
16. Mr. Advani referred me to two cases reported in Bamdas Bhagat v. Krishna Prasad : AIR1940Pat425 and Ranchhoddas v. Mahalaxmi Vahuji : AIR1953Bom153 . In the latter case which arose under Section 92 of the Code of Civil Procedure it was held that before Section 92 can, be invoked, three conditions had to be satisfied. There must be, in the first place, a trust created for public purposes of a charitable or religious nature; secondly, an allegation as to the breach of such trust must be made or the direction of the Court must be deemed to be necessary for the administration of such trust; and, thirdly, the relief claimed in the suit must be one or other of the reliefs mentioned in Clauses (a) to (k) of Sub-section (1) of Section 92 of the Code of Civil Procedure.
17. As I have already stated, the plaint in this case does not make out a case of a breach of public trust or of any necessity for the administration of the public trust. Even assuming that there is such a case made out in the plaint, I am of the view that the reliefs claimed in the plaint would not be hit by the provisions of Section 50 of the Bombay Public Trusts Act. Accordingly, I allow the appeal, set aside the decree of the lower Court and send back the suit to it for disposal in accordance with law. When the suit is taken on the file by the lower Court, it would be open to the lower Court to consider whether a notice should be issued to the Charity Commissioner under Section 56B of the Bombay Public Trusts Act, 1950. Costs of this appeal will be costs in the cause.
18. It is contended before me by Mr. Advani that defendant No. 4 is not a managing trustee, but has been appointed only as a manager to assist defendant No. 1 Parmanand Deepchand Hinduja in the management of the trust. It would be open to the defendants to prove their contention in the trial Court after the suit goes back to it for disposal in accordance with law.