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Nabadwip Bhajan Asram Vs. Commissioners of Nabadwip Municipality - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 7 of 1953
Judge
Reported inAIR1959Cal361
ActsSocieties Registration Act, 1860 - Sections 6 and 7; ;Bengal Municipal Act, 1932 - Sections 124(1) and 535
AppellantNabadwip Bhajan Asram
RespondentCommissioners of Nabadwip Municipality
Appellant AdvocateAtul Chandra Gupta and ;Nilmoni Goswami, Advs.
Respondent AdvocateP.N. Mitter and ;Amiya Kr. Mookerjee, Advs.
DispositionAppeal dismissed
Cases ReferredTaff Vale Railway Co. v. Amalgamated Society of Railway Servants
Excerpt:
- p.k. sarkar, j.1. the appellant, the nabadwip bhajan ashram, a society registered under the societies registration act (xxi of 1860) and described as a religious and charitable institution, instituted a suit against the commissioners of the nabadwip municipality praying for a declaration that certain holdings belonging to it and situated in wards i and ii of the municipality are not liable to he assessed to rates under section 124(1)(h) of the bengal municipal act (xv of 1932) on the ground that the said holdings are exclusively used as places of worship to which the public have the right of free access. it was stated that the object of the ashram was to promote the religious advancement of the hindus by the installation of deities and by providing places for holding bhajan, kirtan etc.,.....
Judgment:

P.K. Sarkar, J.

1. The appellant, the Nabadwip Bhajan Ashram, a society registered under the Societies Registration Act (XXI of 1860) and described as a religious and charitable institution, instituted a suit against the Commissioners of the Nabadwip Municipality praying for a declaration that certain holdings belonging to it and situated in Wards I and II of the Municipality are not liable to he assessed to rates under Section 124(1)(h) of the Bengal Municipal Act (XV of 1932) on the ground that the said holdings are exclusively used as places of worship to which the public have the right of free access. It was stated that the object of the Ashram was to promote the religious advancement of the Hindus by the installation of deities and by providing places for holding bhajan, kirtan etc., and that congregational namkirtan to which the public had free access, was held daily at the main Ashram comprised in three holdings numbered as 18, 19 and 20 of Ward II and at its branch comprised in holdings Nos. 61, 64, 86 and 101 of Ramchandrapur Ward (No. I) of the Municipality. It was further stated that in addition to these holdings being places of worship they were used for charitable purposes and contained a charitable dispensary, a free primary school and that foodstuff and clothings were supplied free to the poor and distressed women who came to take part in the congregational nam-kirtan. Applications made to the Municipal Commissioners for exemption of these holdings from Municipal rates having been unsuccessful, the plaintiff instituted the suit out of which this appeal arises after serving notice upon the Municipal Commissioners under Section 535 of the Bengal Municipal Act of 1932.

2. The Municipal Commissioners denied in their written statement that the holdings in question were used exclusively as places of public worship and were liable to exemption from Municipal rates and the learned Subordinate Judge accepting this view dismissed the suit with costs. He also found that the suit was not maintainable as framed and that no valid notice under Section 535 of the Bengal Municipal Act had been served on the Municipal Commissioners.

3. The plaintiff has now appealed and challenged the findings of the learned Subordinate Judge.

4. A short history of the institution, the Nabad-wip Bhajan Ashram, may usefully be set out at this stage. It appears that this Bhajan Ashram was originally started by one Hunnal Almal who acquired certain lands and erected buildings thereon for the Ashram and that on the 8th September 1927 he executed a deel of trust (Ex. 3} in favour of certain trustees dedicating the said lands and buildings for the worship of God Siva installed in the temple therein and for the holding of kirtan free of charge to which the Hindu public should have free access and it was further provided in the trust deed that the trustees should at all times allow all Marwari and Bhatia pilgrims who might come to Nabadwip for pilgrimage to stay at the buildings of the Ashram. Subsequently on the 29th July, 1933 the institution was registered as a society under the Societies Registration Act and in the memorandum of association of the society its objects inter alia were described to be : (1) to found and maintain an Ashram or Ashrams for the Hindu widows belonging to the Vaishnab sect as might be approved by the society, (2) to promote their religious advancement and (3) to provide food-stuff, accommodation for their bhajan, kirtan, namgan, clothing, medicine etc. The names of five trustees were enumerated in the said memorandum and it was provided in the rules that all properties of the society should be deemed to be vested in the trustees for the time being & an executive committee with a president, two vice-presidents and a secretary was constituted to manage the affairs of the society. Certain rules and regulations were also incorporated in the memorandum of association. (Ex. 4). In 1941 one Mahadeo Prosad Almal made a gift of certain properties to the trustees of the Ashram for the benefit of the Ashram to be used by the trustees thereof upon trust and in order to obviate the difficulty of there being two trusts and in order to facilitate their work the trustees executed a deed of declaration on the 18th August 1941 (Ex. 5) by which the objects of the trust were redefined, the second object being to arrange for stay of Marwari and Bhatia pilgrims in the buildings without charge and also to allow kirtan to be held therein free of charge with the right to the trustees to refuse admission to such of them as they would not like without assigning any reason. The powers of the trustees were also defined by this document.

5. Section 124 (1)(b) of the Bengal Municipal Act, 1932 under which the plaintiff claims exemption from Municipal rates provides that :

'the rate on holdings shall not be imposed on any holding which is used exclusively as a place of worship to which the public have the right of free access without payment .................'

The latter part of this clause is not relevant for our purpose.

6. Sub-section (2) of the section, next provides that :

'the Commissioners at a meeting may, either wholly or partially, exempt from the rate on holdings any holding which is used exclusively for purposes of public charity'.

7. The holdings in respect of which exemption from rates has been claimed by the plaintiff are seven in number, namely, 18, 19 and 20 in Ward II and 61, 64, 86 and 101 in Ward I of the Municipality. The assessment register of the Municipality shows that holdings Nos. 18, 19 and 20 were valued respectively at Rs. 500/-, 3000/ and 1500/- in 1948-49 and assessed to rates on the said values and that subsequently the valuations were revised and reduced to Rs. 450/- and Rs. 2700/- respectively in the cases of holdings Nos. 18 and 19 and the rates on these holdings were assessed at) Rs. 11/4/- and Rs. 67/8/- respectively with effect from the first quarter of 1948-49. The valuation of holding No. 20 and the holding rate Rs. 37/8/- were not, however, reduced.

8. So far as holding No. 61 situate at Ramchandrapur Ward (No. I) is concerned the original valuation of Rs. 2000/- was reduced to Rs. .3 600/- and the rate on the reduced valuation was assessed at Rs. 40/- with effect from the first quarter of 1948-49. We need not consider the rates assessed on the holdings No. 64, 86 and 101 of Ramchandrapur Ward as Mr. Gupta appearing for the appellant stated before us that he would not press the appeal with regard to these three holdings or contend that they were entitled to exemption from assessment of rates under Section 124 (1) (b). All the abovementioned holdings have also been assessed to conservancy rates to which no objection has been taken.

9. It is admitted that all these holdings had been assessed to rates in previous assessments when the holding numbers were different. It is also admitted that after the assessment of 1948-49 the plaintiff filed objections and that thereupon the Review Committee of the Municipal Commissioners reduced the valuations of three of the holdings and the rates thereof as mentioned above. According to the plaint (para 19), the plaintiff thereafter applied to the Municipal Commissioners on the 21st March, 1949 praying for total exemption from the rates imposed on these holdings. No copy of that application was produced but it is mentioned in the plaint that the ground pleaded for exemption was that these holdings were used exclusively for purposes of charity. IF so, exemption must have been prayed For under Sub-section (2) of Section 124 of the Bengal Municipal Act referred to above. It is not clear from the plaint whether the plaintiff wanted exemption from the rates under Section 124 (1) (b) or under Section 124 (2). In the trial court both cases were considered and it was held that the plaintiff was not entitled to exemption from rates under Sub-section (2) of Section 124 either. Mr. Gupta for the appellant, however, confined this appeal to the claim for exemption under Section 124 (1) (b) and did not argue that the holdings were entitled to exemption from rates under Section 124 (2) also. We shall therefore say nothing on that point.

10. Before we enter upon a consideration of the main question argued in this appeal, viz., whether the holdings mentioned above or any of them are used exclusively as places of worship to which the public have the right of free access, it is necessary to consider certain preliminary objections to the frame and maintainability of the suit and to the validity and sufficiency of the notice under Section 535 of the Bengal Municipal Act, on which the findings of the learned Subordinate Judge have been against the plaintiff.

11. The objection to the frame and maintainability of the suit is based upon the provisions of the Societies Registration Act. The suit has been instituted, as already stated, by 'The Nabadwip Bhajan Ashram' described as a religious and charitable institution registered under Act XXI of 1860. It is contended that under the provisions of the said Act 'The Nabadwip Bhajan Ashram' as a registered society cannot sue in its own name. The relevant provision as to how a society can sue or be sued is contained in Section 6 of the Act which is in these terms :

''Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion : Provided that it shall be competent for any person having a claim or demand against the society to sue the president, or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant. Reference has also been made to Section 7 of the Act which provides that no suit or proceeding in any Civil Court shall abate by reason of the person by or against whom such suit or proceeding shall have been brought dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit or proceeding shall be continued in the name of or against the successor of such person. The effect of these provisions, according to Mr. Mitter, is that the society cannot sue in its own name.

12. There is, however, a rule, being rule No. 17, framed by the society and incorporated in the memorandum of association at the time of registration of the society which is in these terms:

'The Association shall sue and be sued in the name of the Association or the Honorary Secretary for the time being.'

The learned Subordinate Judge has held that the suit had not been instituted in accordance with Rule 17, The plaint had been signed and verified by one Harchand Rai Bhiwaniwala who described himself as the legally constituted attorney for the trustees and the ground on which the learned Subordinate Judge held that the suit had not been properly instituted was that it had not been shown that Harchand Rai Bhiwaniwala had authority to sign and verify the plaint. But one of the trustees Radha Kissen Almal (P.W. 11) gave evidence that the Board of trustees had agreed to the institution of this suit by a resolution and that Harchand Rai Bhiwaniwala who was the manager of the Ashram had authority to act on behalf of the trustees. Harchand Rai himself also said so. The suit cannot therefore be held to be defective on the ground mentioned by the learned Subordinate Judge.

13. Mr. Mitter, however, pointed out that under Rule 17 quoted above the trustees themselves were not authorised to sue or be sued on behalf of the Ashram and that, as such, it did not matter whether they had agreed to the suit or authorised Harchand Rai to institute it. He attacked the first part of Rule 17 which authorised the Nabadwip Bhajan Ashram to sue or be sued in its own name to be itself ultra vires of Section 6 of the Societies Registration Act and argued that the suit was not maintainable, even though it had been instituted in the name of the Ashram under that part of the rule. According to him, the provisions of Sections 6 and 7 made it clear that a registered society could not sue or be sued in its own name but should sue or be sued only in the manner indicated in Section 6 and the said section only left the selection of the particular individual in whose name it should sue or he sued to be guided by the Rules and regulations framed by such society at the time of registration. He argued that since no power was conferred by Section 6 or any other section on such society to sue or be sued in its own name, the society could not confer such power on itself by framing rules in that behalf. He referred in this connection to the decision of the Bombay High Court in the case of Satyavart Sidhantalankar v. Arya Samaj, Bombay, AIR 1946 Bom 516, in which after a consideration of the relevant sections of the Societies Registration Act Bhagwati, J., as he then was, came to the conclusion that the provisions of the Act did indicate that a registered society would not be able to sue or be sued in its name but could sue or be sued only in the name of the president, chairman, or principal secretary or the trustees thereof or some other person or officer nominated to be the defendant by the society.

14. But Bhagwati, J. also held in that case that these provisions were not mandatory and based his opinion on the decision of the House of Lords in Taff Vale Railway Co. v. Amalgamated Society of Railway Servants, (1901) AC 426. In that case a trade union registered under the Trade Union Acts of 1871 and 1876 had been sued and objection had been taken that it could not be sued in its own name. This objection was upheld by the Appeal Court because there was no provision in the said Acts, either expressly or impliedly, enabling the trade union to sue or be sued in its own name. Section 9 of the Act of 1871 provided on the other hand that the trustees of a trade union or any other officer of the union who would be authorised so to do by the rules thereof would have power to bring or defend any section in a Court of law touching the property of the trade union.

15. The decision of the Appeal Court was reversed by the House of Lords and in doing so Lord Brampton observed :

'The very omission from the statute of any provision authorising and directing that it' (i.e. the trade union) 'shall sue and be sued in any other name than that given to it by its registration appears to me to lead to no other reasonable conclusion than that in so creating it, it was intended by the Legislature that by that name and by no other it shall be known and that for all purposes the name should be used and applied to it in all legal proceedings, unless there was any other provision which militated against such a construction . .

And Lord Lindley observed :

'The Act appears to me to indicate with sufficient clearness that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business purposes. The use of the name in legal proceedings imposes no duties and alters no rights : it is only a more convenient mode of proceedings than that which would have to be adopted if the name could not be used. I do not say that the use of the name is compulsory, but it is at least permissive.'

16. It would appear from the above that while the Appeal Court proceeded on the view that since there was no provision in the Trade Union Acts empowering a trade union to sue or he sued in its own name it could not do so, the decision of the House ,of Lords turned on the absence of any provision in the said Acts authorising and directing that it shall sue or be sued in any other name than its registered name. Stress was laid on the fact that a trade union on registration came into existence as a legal entity created by statute which should be known by its registered name for all purposes. Section 9 of the Trade Union Act of 1871 contained provisions almost similar to those in Section 6 of the Societies Registration Act and there are no provisions in the latter Act authorising and directing a registered society to sue and be sued in any other name than its registered name. In these circumstances we agree with Bhagwati, J. in the construction put by him on Sections 6 and 7 of the Societies Registration Act, namely, that the provisions contained therein for institution of suits by or against a registered society are not mandatory and do not militate against a registered society suing or bring sued in its registered name. In the absence of any express provision in the statute barring the institution of suits by or against the society in its registered name, the first part of Rule 17 cannot be held to be ultra vices of the Act. We hold accordingly that the suit as framed was maintainable.

17. With regard to the notice under Section 535 of the Bongal Municipal Act which has been found to be invalid and insufficient by the learned Subordinate Judge it appears that two such notices were given--one on the 25th June, 1949 (Ex. 9) and another on the 15th May, 1950 (Ex. 9a). Both the notices were relied upon in the trial court and both were held to be invalid and insufficient. Before us Mr. Gupta on behalf of the appellant did not rely on the second notice, Ex. 9a, because it had not been given on behalf of the plaintiff but had been given by a lawyer on behalf of Harchand Bhiwaniwala described as Manager and duly authorised agent of the trustees of the Nabadwip Bhajan Ashram. This notice could not therefore be taken as a valid notice under Section 535 of the Act. Mr. Gupta, however, relied on the first notice which tad been given on behalf of Nabadwip Bhajan Ashram and signed by Harchand Bhiwaniwala as the legally constituted attorney and manager for the trustees. This notice declared the intention of the Ashram to bring a suit against the Municipal Commissioners for a declaration that the holdings mentioned in the notice are used exclusively as a place of worship to which the public have a right of free access and that, as such, they are not liable to pay taxes on holdings.

18. This notice was not, however, mentioned in the plaint and Mr. Mitter took objection to this notice on the ground that the cause of action was stated in the notice to have arisen on the 5th May, 1949 when the Municipal Commissioners issued notice to the trustees of the Ashram demanding a certain sum on account of municipal taxes, whereas in the plaint of the suit the cause of action was said to have arisen on the 3rd March, 1950 when the Review Committee of the Municipal Commissioners disposed of the application of the plaintiff for exemption from municipal rates--so that the causes of action mentioned in the notice and in the suit were different. He also argued that the suit sot having been instituted within six months from the date of the cause of action mentioned in the notice, as required by Sub-section (2) of Section 535, was barred by limitation.

19. It was argued by Mr. Gupta that the date of the cause of action mentioned in the plaint was immaterial and that since all the facts constituting the cause of action had been stated in the notice, it should be considered valid and sufficient. He further argued that the cause of action mentioned in the plaint was only a continuation of the same cause of action as stated in the notice. It is, however, difficult to accept the contention of Mr. Gupta because the cause of action as stated in the plaint was the rejection of the plaintiff's application for exemption by the Review Committee of the Municipal Commissioners which was an event happening after the date of the notice and which, according to the plaint, furnished the cause of action for the suit. That is why a second notice was considered to be necessary and was given. The suit was not apparently based on the first notice at all and it was not therefore mentioned in the plaint. The date of the cause of action mentioned in the plaint cannot be ignored and in these circumstances it is not possible to hold that the suit is based on the same cause of action as mentioned in the notice and that the notice complies with the provisions of Section 535 which require the cause of action for the suit to be mentioned in the notice. In this view the other questions argued regarding the notice do not arise and need not be considered.

20. Coming now to the main question which has been argued in this appeal as to whether the Municipal holdings mentioned in the plaint which constitute the Nabadwip Bhajan Ashram are used exclusively as places of worship to which the public have the right of free access, we would observe at the outset that we do not propose to enter into any learned disquisition on nam-kirtan as a form of worship enjoined by Vaishnnb religion as to which a considerable amount of evidence was recorded by the trial Court--eminent professors and Vaishnab scholars having been examined by both sides to give their views on the point. Mr. Mitter has very fairly stated that he would not contend that nam-kirtan is not a form of worship enjoined by Vaishnab religion or that a place dedicated for nam-kirtan where such kirtan is held daily is not a place of worship. There was some difference of opinion among the scholars examined as to whether nam-kirtan by women was sanctioned or approved by Vaishnab religion and it appears that there is one school which does not approve of it. In practice, however, women do take part in nam-kirtan and we cannot go to the length of holding that if they do so, that would not be a form of worship, even if all classes of Vaishnabs may not approve of it. The learned Subordinate Judge has found on the evidence that nam-kirtan is actually held for some hours every day in both branches of the Ashram--on a somewhat mass scale in the main Ashram and on a limited scale in the Ramchardrapur branch--the participants being women, but he is of opinion that the whole thing is a shorn and that only a show of worship in that form is put up to attract women who, in consideration of doles in the shape of foodstuff and clothing, participate in it and also do other menial works of the Ashram. It is clear from the evidence that there is a considerable amount of prejudice against the activities of this Ashram among the local people and the learned Subordinate Judge may have been influenced by their opinion. But for the purposes of this appeal we need not go to that length and we do not also consider that the evidence justifies that extreme conclusion. In the memorandum of association of the Ashram one of its objects is described as promotion of religious advancement of widows belonging to the Hindu community and Vaishnab sect and also provision for their maintenance. It is well-known that Nabadwip has a considerable population of Hindu widows and if they are encouraged to participate in nam-kirtan daily in the Ashram and provision is made for them in return, it cannot be said that this is done not for the purpose of their religious advancement but for some other ulterior hidden motive.

21. In order, however, to be entitled to exemption from payment of Municipal rates under Section 124(1)(b) of the Bengal Municipal Act it will not be sufficient for the plaintiff to show that nam-kirtan is held daily in the two branches of the Ashram. It will have to be shown that the Ashram holdings are used exclusively for this purpose and that the public have the right of free access thereto. As Mr. Mitter has pointed out, there is no such evidence in this case. The evidence of the manager Harchand Bhiwaniwala (P. W. 15) is that there is a spacious kirtan bhavan --150 ft. square--in the main Ashram and that there is also a tin-shed east of it where generally kirtan is held. But this kirtan bhavan with the tin-shed does not exhaust the Ashram. There are considerable buildings in the Ashram which are admittedly used for other purposes and cannot therefore be called places of worship. To the north of the kirtan-bhavan is a Siva temple--a small one--which may also be considered a place of worship. But the user as a place of worship ends there. Near the temple there is a girls' school and near about there is a charitable dispensary run on the Ayurvedic system. The main buildings with a large number of rooms are used mainly for housing pilgrims and visitors to Nabadwip belonging to the Marwari, Bhatia and other communities who can stay there for several days according to the rules of the Ashram without any payment. Similar is the case with the Ramchandrapur branch of the Ashram.

22. The kirtan bhavan or the Siva temple in the main Ashram or its branch at Ramchandrapur may be considered as places used for worship, but there is no evidence as to in which Municipal holding the kirtan bhavan or the Siva temple is situated. Extracts from the Municipal Assessment Register were produced in this case on behalf of the defendants and it appears from the descriptions therein (Ex. C) that holding No. 19 contains a Siva temple, 3 natmandirs and pucca buildings consisting of 30 or more rooms in 3 flats. Holdings Nos. 18 and 20 also contain pucca buildings with several rooms. The kirtan bhavan being adjoining to the Siva temple is probably situated in holding No. 19. All that can be said therefore is that a certain portion of holding No. 19 is used as a place of worship but the greater and more substantial portion of the holding consisting of buildings is used for other purposes, viz., school, dispensary and residence of pilgrims and visitors. We are accordingly unable to hold that this holding is used exclusively as a place of worship, as is required by Section 124(1)(b). So far as holdings Nos. 18 and 20 are concerned there is no evidence that nam-kirtan is held there or that the buildings situated therein are at all used as places of worship. As to the Ramchandrapur Ashram we have already stated that Mr. Gupta did not press the appeal with regard to three of the four holdings and pressed it with regard to holding No. 61 only. According to the description in the Municipal Assessment Register, this holding contains a Siva temple, a flower garden, a two-storied building with 34 rooms and certain other buildings. Assuming that nam-kirtan is held in this holding it cannot be said that the entire holding is exclusively used as place of worship. The buildings here which constitute the greater and more substantial portion of the holding are mainly used for the same purpose of residence of pilgrims and visitors.

23. It is also open to doubt whether the public have a right of free access to these holdings. Of course the public are not charged anything for going into the Ashram and can attend the nam-kirtan but, according to the second trust deed, Ex, 5, the trustees have the right 'to refuse admission to such of them as they will not like without assigning any reason'. Such right being reserved to the trustees it is difficult to hold that the public have the right of free access to the Ashram.

24. We hold accordingly that the suit was rightly dismissed and this appeal must fail. The appeal is dismissed with costs--hearing fee being assessed at 10 gins. P. N.

Mookerjee, J. :

25. I agree that this appeal should fail but I would like to add a few words of my own on some of the important questions of law which have been raised before us. Strictly speaking, only one of them is relevant for purposes of this appeal, as, in the facts before us, the decision thereon is sufficient for its disposal, but, on one more, which has been very fully argued by the parties, J, shall also express my views.

26. Of the above two questions, the essential one demands construction of Section 124 (1) (b) of the Bengal Municipal Act and the other relates to the interpretation of inter alia Section 6 of the Societies Registration Act. This task of construction, at least in some of its aspects, is undoubtedly difficult, but it has somewhat been lightened by certain considerations, to which T shall duly refer in the course of my present Judgment.

27. As pointed out by my learned brother, the appellant's claim here is of a total exemption from holding rates under Section 124 (1) (b) of the Bengal Municipal Act. That section, as quoted by him, stands, in its relevant part, as follows :

'The rate on holdings shall not be imposed on any holding which is used exclusively as a place of worship, to which the public have the right of free access without payment.'

28. It is, therefore, necessary that the holding or holdings, in respect of which the exemption is claimed, must be used exclusively as a place of worship, to which the public have the right of free access without payment. That is the sine qua for the application of the section and for a claim of exemption thereunder and, in order to succeed, the claimant must establish :

(i) that the claim is in respect of it holding;

(ii) that the holding is used exclusively as a place of worship, and

(iii) that the public have the right of free access to the holding without payment. That, indeed, is clear from an analysis of the section itself.

29. In the instant case before us, the first of the above three elements or ingredients is undoubtedly present and the claim has been made in respect of several distinct holdings, namely, holdings Nos. 18, 19 and 20 and holding No. 61, leaving aside the rest, in respect of which the claim has not been pressed before us. But the other two elements have not been established. Neither of the above: four holdings can be said to be exclusively used as a place of worship. The section uses the word 'exclusively' and that cannot be ignored. Indeed, the emphasis on 'exclusive user' underlies the very application of the section and the eligibility for exemption from holding rate and that aspect cannot be overlooked. As, therefore, the section requires that the holding must be used exclusively as a place of worship, every part of it must be so used, or its user must, at least, be such as to be exclusively referable to worship or to a place of worship. That, as my learned brother has pointed out, has not been established in this case, the evidence rather indicating,--and indicating sufficiently and clearly,--the user of some parts, at least, of each of the disputed holdings for other purposes or for purposes not so intimately connected with worship or place of worship as to be exclusively referable to it. On this finding alone, leaving apart other questions, the plaintiff's present suit must fail and this appeal should be dismissed. As, however, the other question, referred to above, has also been elaborately argued before us, I would also express my views on the same, though in as brief a manner as possible.

30. The plaintiff in the present case is the Nabadwip Bhajan Asram which is a registered society under the Societies Registration Act (Act XXI of 1860). The suit has been brought by the society in its own name and it is objected to by the defendant Municipality. The objection is based on Section 6, read with Section 7, of the, Societies Registration Act, which may be reproduced here as follows :

'6. Every society, registered under this Act, may sue or be sued in the name of the president. Chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion :

Provided that it shall be competent for any person having, a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if, on application to the governing body, some other officer or person be not nominated to be the defendant.'

'7. No suit or proceeding in any Civil Court shall abate or discontinue by reason of the person, by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character, in the name whereof he shall have sued or been sued, but the same suit or proceedings shall be continued in the name of or against the successor of such person.'

31. It is argued by Mr. Mitter that the terms of Section 6 are mandatory and that they clearly indicate that the society can only sue in the manner, laid down therein, and not in its own name. He argues further that Section 7 confirms the above view. I am unable to accept the above argument,

32. A registered society is a legal entity and has a legal status. Prima facie, therefore, it can sue in its own name and, unless there is something to exclude that position or prohibit such suit, the suit, so brought, should be held to be maintainable. In the Act before us, namely, the Societies Registration Act, there is no such prohibition or exclusion and reasonably, therefore, the section (Section 6) should be construed as permissive and the mode of institution of suit, prescribed therein, should be regarded as alternative to the normal mode. And, as to Section 7, it is perfectly clear that it is only a corrollary--though a necessary corrollary--to Section 6, providing for the continuation of the suit in certain contingencies and prescribing the mode therefor. Section 8 also to which, too, some reference was made during argument, is similarly explicable and does not preclude or stand in the way of the above construction of Section 6.

33. In support of my above view, it is only necessary to refer to the relevant basic principles of construction of provisions like the above, as enunciated by Lord Lindley in (1901) AC 426--and that enunciation or statement of principle is preferable and certainly more exhaustive than Lord Brampton's in the same case--and also in Halsbury's Laws of England, Hailsham Edition, Vol. VIII, p. 6, footnote (q) (Simonds Edition, Vol. 9, p. 4, footnote (1)) and Vol. XXXII, p. 486, Para 776, summarising the law on the point in the light of decided cases. Reference) may also be made to the judgment of Bhagawati, J., as he then was, in the case of AIR 1946 Bom 516, where at least, in the operative part, he clearly expressed himself in favour of the view that Section 6 of the Societies Registration Act was permissive and not mandatory (vide p. 523 (2); see also p. 522 (1)). That being so, Rule 17 of the Society's Rules and Regulations (Vide Sat. 4), as quoted in the judgment of my learned brother, cannot be said to be ultra vires or invalid and, both under the said Rule and also independently thereof, the instant suit must be held to be maintainable. It is not necessary for my present purpose to say anything more on this point on the present occasion.

34. Before concluding, I may just refer incidentalily to the question of notice and limitation under Section 535 of the Bengal Municipal Act, which also was part of the defence in the present case. As, however, that question is not altogether free from difficulty and as it is not necessary to express any opinion on the same for purposes of this appeal, I prefer to leave it open and reserve consideration of the point for some appropriate future occasion.


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