PATEL NANJI DEVJI Vs. PATEL JIVRAJ MANJI

JUDGEMENT

(1.) Seven (out of eleven) trustees of public trust known as Shri Santpath Sampradaya Jyotidham Mandir Nana Kadiya Taluka Nakhtrana Dt. Kutch filed the suit inter alia praying that respondent Nos. 1 to 4 who are acting as trustees of the trust be removed as trustees and be also permanently restrained from interfering with the management of the trust. The respondents appeared in the suit and resisted the same on facts as well as on law points. The respondents submitted an application under Order 7 Rule 11(d) of the C. P. Code and prayed that the suit was barred by the provisions of Bombay Public Trusts Act 1950 (hereinafter referred to as the Act) inasmuch as necessary consent of the Charity Commissioner before filing the suit has not been obtained and hence the suit is liable to be rejected. The trial Court after hearing the parties came to the conclusion that as per the provisions of Sec. 51 of the Act consent of the Charity Commissioner was necessary before filing the suit in question. Admittedly no such consent has been obtained in the instant case. Hence the trial Court rejected the suit under the provisions of Order 7 Rule 11(d) of the C. P. Code. Therefore this appeal by the original plaintiffs.

(2.) Learned Counsel for the appellants-original plaintiffs submitted that the phrase the persons having an interest in any public trust occurring in Sec. 51 of the Act would not include the trustees of the trust and therefore the provisions of Sec. 51 cannot be invoked against the plaintiffs who are admittedly the trustees of the trust in question. In his submission the phrase person having interest has been defined in Sec. 2(10) of the Act. As per this definition the trustees have not been included therein and therefore in his submission the plaintiffs where trustees of the trust in question were not required to obtain consent even though the suit is of the nature specified under Sec. 50 of the Act.

(3.) This contention cannot be accepted for the simple reason that the definition of person having interest occurring in Sec. 2(10) of the Act is an inclusive definition. This definition has been amended by the Bombay Act 28 of 1953. Formerly the definition of person having interest was differently worded. Prior to the amendment the definition was exhaustive one because the word means was employed by the legislature while defining the phrase. However by the aforesaid amendment the word means has been substituted by the word includes. By this amendment legislature has made its intention explicitly clear. In view of this position of law by no stretch of reasoning it can ever be said that the definition would not take within its steep the trustees of the trust. Trustees of the public trust would certainly be the persons having interest in the trust property in wider sense of the term. There is no reason why restricted or truncated meaning be given to the phrase. If trustees have no interest in the property of trust who else would have interest ? Be it noted that this interest of the trustees need not be pecuniary or personal in the trust property. They would be interested in the proper management of the trust and its property. When the nature of the suit is such that it falls within the purview of Sec. 50 of the Act it would be proper that before filing such suit the consent of the Charity Commissioner is obtained by the plaintiff even though the plaintiffs are some of the trustees of the trust