PAPULAR ART PRINTERS Vs. RUSHIKUL BRAHMACHARYA ASHRAM TRUST

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the judgment dated 3rd July 1996 passed by the Additional Chief Judge, Small Causes Court, Bombay in Appeal No. 770 of 1985, dismissing the Appeal filed by the petitioner and confirming the judgment and decree dated 8.11.1985 passed by the learned Trial Judge, Small Causes Court, Bombay in RAE Suit No.463 of 1971. The suit related to shop no.62 in Chudiwala building, Khadilkar Road, Kandewadi, Bombay-4. The suit was filed by the Seth Tolaram L.Chudiwala, who described himself as Managing Trustee of Shri Rushikul Bramacharya Ashram Trust. It was claimed that the suit premises are owned by the Trust, which is a registered public trust and of which Shri Chudiwala is a managing trustee. It is an admitted position that apart from the said Chudiwala there are other trustees of the said publict trust. Before the Trial Court the maintainability of the suit was challenged on the ground that to a suit for recovery of the property owned by the public trust, all the trustees of the trust must be made parties. On the basis of the objection raised in the written statement a issue was framed by the Trial Court, which reads as under :-

(2.) IT is urged by the learned counsel appearing for the petitioner that this court by its judgement in Nagar Wachan Mandir, Pandharpur v/s. Akbaralli Abdulhusen and Sons and others (1994 Mh.L.J.280) has held that "unless the instrument of trust provides delegation of powers, a suit filed for recovery of the property of a public trust must be filed by all the trustees." The learned counsel further submits that thus it is a settled law that unless the instrument of trust provides for delegation of powers, all the trustees must institute a suit for recovery of the trust property. He contended that in the plaint, it is clearly stated that the property is owned by the public trust. Neither the instrument of trust has been filed to show that the instrument of trust makes a provision for delegation of the powers of the trustees nor all the trustees have been joined in the suit. The learned counsel further submitted that the Appellate Court has distinguished the judgement of this Court in Nagar Wachan Mandir's case referred to above, relying on the judgement of the Supreme Court in 1963 Mah.L.J. 789 in the case of Vithal Krishnaji Nivendkar v/s. Parduman Ram Singh holding that considering artificial definition of term 'landlord' appearing in the Bombay Rent Act, a trustee who is receiving rent becomes a landlord and therefore he can alone file a suit under the Bombay Rent Act. In the submission of the learned counsel, the Appellate Court, however, did not appreciate that there is no material on record to establish that the said Chudiwala, who had filed the suit was either receiving the rent or was entitled to receive the rent.

(3.) PERUSAL of the judgment of this Court in Nagar Wachan Mandir's case makes it abundantly clear that as a result of series of judgments of the Gujarat High Court and this Court, it is now a settled law that unless an instrument of trust makes a provisions of delegation of powers of the trustees in the suit for recovery of the trust property all the trustees must join in the suit and a suit for recovery of the trustees is not maintainable. Perusal of the judgment of the Appellate Court shows that the Appellate Court shows that the Appellate Court has held that the judgment of this Court in Nagar Wachan Mandir's case, is distinguishable because in a suit filed under the provisions of the Bombay Rent Act, a landlord can file a suit and, therefore, if one of the trustees is entitled to receive the rent on behalf of the trust, then he becomes a landlord and the suit filed by him is tenable. The Appellate Court has relied on the observations of the Supreme Court in Vithal K.Ninendkar's case as referred above. The observation of the Supreme Court to be found in paragraph 8 of that judgement reads as under: