BAPALAL GODADBHAI KOTHARI Vs. CHARITY COMMISSIONER GUJARAT

JUDGEMENT

(1.) I will now consider the contentions raised in Appeal No. of 1963 filed by the Charity Commissioner. Mr. A. D. Desai learned Assistant Government Pleader has canvassed before me the view that order and directions regarding reimbursement passed and given by learned District Judge in favour of the first defendant was not a legal order. Mr. Desai's submission is that the impugned order is passed having regard to the provisions of sec. 32 of the Indian Trusts Act 1882 which is not applicable to the Public Trusts and therefore no order reimbursement can be passed in the suit as no such corresponding provision is made in the Act. Mr. Desai has further contended that first defendants claim for reimbursement was in the nature of a counter claim; and the first defendant should have filed a separate suit for the purpose

(2.) In Re Sabnis Goregaonkar & Senjit 39 633 Mr. Justice B. J. Wadia has observed as under:-

(3.) Sec. 32 of the Indian Trusts Act final 1882 provides as under:-Every trustee may reimburse himself or pay or discharge out of the trust property all expenses properly incurred in or about the execution of the trust or the realization preservation or benefit of the trust property or the protection or support of the beneficiary. It is clear that sec. 32 of the Indian Trusts Act embodies nothing more or less than the principles which have been applied to Equity Courts in England. Therefore although sec. 32 of the Indian Trusts Act may not in terms apply to the cases covered under the Bombay Public Trusts Act still the principles underlying will have equal force in this case. The first defendant is therefore entitled to be reimbursed out of the trust-property all expenses properly incurred in the execution of the trust or the realization preservation or benefit of the trust property. The learned Judge was therefore right in finding that the first defendant was entitled to be reimbursed. I therefore reject the contention of Mr. Desai on this count. The contention of Mr. Desai that the claim of reimbursement is in the nature of a counter claim has also no merit and must be rejected.