ANANDLAL B KOTHARI DR Vs. NIRANJAN S KOTHARI

JUDGEMENT

(1.) This revision arises out of a litigation which has long history spread over two decades. It pertains to the management of the public charitable trust of hospital situated at Palanpur-District: Banaskantha. There was some dispute with regard to the manage- ment of the trust and hence a suit being regular Civil Suit No. 1 of 1962 was filed in the Civil Court at Palanpur under sec. 50 of the Bombay Public Trusts Act 1950 (hereinafter referred to as the Act).

(2.) A scheme was framed by the District Court as far back as in 1967 for the management of the Trust. For one reason or the other the scheme could not be put into effect and the matter was fought out both in the Civil Court at Palanpur as well as in this Court. Ultimately the scheme was finally sanctioned by this Court with certain modifications by its judgment and order dated 19/12/1975 Even after the said judgment of this Court the scheme did not come into operation till the impugned order was passed by the learn- ed District Judge Palanpur in 1979. In the present revision the peti- tioner Dr. Anandlal B. Kothari is represented in this Court by his brother and Power of Attorney holder Mr. Rasiklal Bapalal Kothari. Mr. Kothari has urged that the scheme as modified by the High Court could not be put into operation so long as all the 11 trustees were not appointed. Although the High Court had named all the 11 trustees in the modified scheme one of them namely S. C. Kothari had already died at the time when his name was specified in the High Courts order. According to Mr. Kothari unless and until all the 11 trustees are in existence the trust properties could not be handed over to the board of trustees. In other words according to him 10 existing trustees could not take over possession unless and until the 11 trustee is validly appointed and agrees to take over possession. The second contention raised by Mr. Kothari is that the scheme as modi- fied by this Court can be executed only by taking execution proceed- ings which have not yet been instituted. Mr. S. K. Zaveri learned Counsel for respondent No. 1 has submitted that the contentions raised by Mr. Kothari are legally not sustainable. He submits that there is nothing in law which would come in the way of the existing ten out of eleven trustees taking over the trust property from the Court receiver under the order of the learned District Judge. Mr. Zaveri has further submitted that once the board of trustees has been named and they have given their assent to act as trustees the fact that one of the trustees has ceased to exist would not in any way deprive the surviving trustees from discharging their duties as trustees. Mr. M. A. Bukhari learned Assistant Government Pleader appearing on behalf of respondent No. 2. Charity Commissioner has supported Mr. Zaveri and has pointed out from the record of this case that all the surviv- ing trustees had given their written assent to act as such and hence the impugned order of the learned District Judge is perfectly legal and valid. Mr. Kotharis contention has no substance and therefore it has to be rejected because if on account of non-existence of one of the trustees the remaining trustees were to be held to be incapable of carrying on with the trust then probably no trust can function Where one of the trustees dies or resigns or removed. The trust has got to be managed by the remaining or surviving trustees irrespective of any other trustees going out on account of either the death removal resignation or any other cause. The law does not require that trustees can act only when all of them are in existence and act in unison. In certain circumstances it may be that there may be a sole ssurviving trustee and he would be as much liable to manage the trust as the entire board of trustees.

(3.) With regard to the second contention of Mr. Kothari that the scheme can be enforced by taking out execution proceedings by the Charity Commissioner is also not tenable. The scheme as framed by the District Court was challenged in this Court and was ultimately modified to some extent by this Court. The scheme in its modified form has to be put into effect for which no execution proceedings are necessary. It must be said in fairness to Mr. Kothari that he has stated that he is as keen as any body to see that the scheme functions smoothly and the benefit of the trust goes to the beneficiaries. He also stated that he has no intention to create any impediments or to delay the smooth functioning of the scheme. His only objection is that in putting the scheme into operation certain illegalities or irregularly ties committed which if rectified it would be possible for him to give his whole hearted support and full co-operation in the working of the scheme. The sentiments of Mr. Kothari are laudable and it is placed on record that he has made all the efforts to see that the trust is run on efficient line and that the ultimate blessings go to the settlor. Mr. Kothari has expressed his desire that it may be clarified that the scheme will be regarded to have been given effect to and put into force by this order as modified by this Court earlier and that henceforth the petitioner will give his unstinted support to the efficient running of the hospital which is subject matter of the trust. The present petitioner who is himself a practising doctor and a man of considerable experi- ence would be a great asset to the hospital and it is expected that he will render his valuable services to the trust not only as one of the trustees but also as a descendent of the founder of the trust.