SHAH DAHYABHAI PREMCHAND Vs. MOHANLAL PITAMBARDAS

JUDGEMENT

(1.) The only point which arises for consideration in this appeal is whether the investment made by the trustee or trustees of Public Trust funds without the permission of the Charity Commissioner otherwise than as provided by sub-sec. (1) of sec. 35 of the Bombay Public Trusts Act 1950 hereinafter referred to as the Act is invalid and void ab-initio? This question has cropped up in this appeal in the following circumstances:

(2.) Shah Dahyabhai Premchand and four others filed a Special Civil Suit No. 47 of 1962 against the present respondents to recover a certain sum of money due from them. In that suit a decree was passed against the present respondents on January 31 1964 The rights of the judgment- creditors under that decree were assigned in favour of the present appell- ants by an assignment deed dated March 25 1968 The appellants are the trustees of Shri Buhari Jain Swetamber Murti Pujak Sang a public Trust registered under the Act. In the execution application No. 36 of 1968 filed for the recovery of the decretal dues of Rs. 5443.00 by sale of the agricultural lands belonging to the respondents it was contended by the judgment-debtors that the execution was not competent inasmuch as the trustees did not derive any right title or interest under the assignment deed as the trust money was employed for the purchase of the rights of the judgment-creditors under the decree without obtaining the permis- sion of the Charity Commissioner as required by sec. 35 of the Act. The learned Trial Judge upheld this contention and dismissed the Darkhast filed against the present respondents. The appellants having been aggrieved by the said decision of the learned Trial Judge have come in appeal to this Court.

(3.) Mr. Shelat the learned Advocate for the appellants contended that the view taken by the learned Trial Judge that failure to obtain permi- ssion of the Charity Commissioner before applying the trust fund other- wise than as provided by sub-sec. (1) of sec. 35 of the Act renders the transaction invalid and void is not correct. The relevant part of sec. 35 of the Act provides as under: