IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO. 641 OF 2004. FROM ORDER NO. 641 OF 2004. FROM ORDER NO. 641 OF 2004. Shri Cutchi Visa Oswal Derawasi Jain Pathshala, through its Chairman Virchand Koonverji Korani having its office at 84, Samuel Street, Mumbai- 400 009. ... Appellant. V/s. 1. Shri Cutchi Visha Oswal Derawasi Jain Mahajan, through its Chairman, Popatlal Bharmal Sah, having its office at 226/232, Narsi Natha Street, Mumbai- 400 009. 2. The Joint Charity Commissioner, Mumbai. ... Respondents. A.K.Abhyankar with Mrs.M.D’Souza i/b. Kishore Dalal & Co. for the appellant. Navin Parekh with Z.A.Jariwala i/b. Thakore Jariwala & Associates for respondents. CORAM CORAM CORAM : : : V.C.DAGA, V.C.DAGA, V.C.DAGA, J. J. J. RESERVED RESERVED RESERVED ON : 13th August 2004. ON : 13th August 2004. ON : 13th August 2004. PRONOUNCED PRONOUNCED PRONOUNCED ON: 14th September 2004. ON: 14th September 2004. ON: 14th September 2004. JUDGMENT JUDGMENT JUDGMENT : : : . This appeal at the instance of Shri Cutchi Visa Oswal Derawasi Jain Pathshala ("Pathshala Trust" for short) is directed against the order dated 17th June, 2004 passed by the City Civil Court at Bombay while dismissing Notice of Motion No.809 of 2004 moved in S.C.Suit No.552 of - 2 - 2004, whereby prayer for temporary injunction to restrain defendant No.1/ respondent No.1 herein; - Shri Cutchi Visha Oswal Derawasi Jain Mahajan ("Mahajan Trust" for short) and their trustees from interfering with the management, administration and appointment of trustees came to be rejected. The The The Factual Matrix : Factual Matrix : Factual Matrix : ------------------ ------------------ ------------------ 2. The factual matrix disclosed by the appellant reveals that the appellant/ original plaintiff - Pathshala Trust is an Educational Trust registered under the Bombay Public Trust Act, 1950 ("Trust Act" for short) at No.E-539 running two schools. Respondent No.1/ original defendant No.1 - Mahajan Trust is also a public Trust duly registered under the Trust Act engaged in religious activities. 3. The appellant - Pathshala Trust alleged that it is governed by the trust deed dated 19th July, 1905, rules and regulations made thereunder. That respondent No.1 - Mahajan Trust is an independent Trust. It is governed by its own independent constitution, rules and regulations. It has no control over the management of the appellant - Pathshala Trust. That mode of succession of the appellant - Pathshala Trust to the trusteeship is as - 3 - per clause-17 of the trust deed dated 19th July, 1905; which provides that trustees on their Trust are to be appointed by the Cutchi Visa Oswal Deravasi Jain Caste ("CVOD Jain Caste" for short). 4. The appellant - Pathshala Trust claimed that some time in the year 1985 the trustees of the respondent No.1 - Mahajan Trust had approached Bombay High Court for getting its scheme amended so as to exercise their right to control, manage and administer the appellant - Pathshala Trust. According to them, appellant - Pathshala Trust was not a party to the said proceedings before the High Court as such they were required to seek directions from the then Charity Commissioner vide their letter dated 4th October, 1985 so as to confirm their status vis-a-vis respondent No.1 - Mahajan Trust. According to them, in reply, the then Deputy Charity Commissioner Mr.R.B.Aragade, vide his letter dated 18th November, 1985 informed the appellant - Pathshala Trust that both Trusts were independent of each other. The appellant - Trust, thus, claimed that, in the light of the said reply, they were required to amend their constitution in the meeting of the ‘CVOD Jain Caste’ held on 4th October, 1995. The amended constitution was to take effect from 1st February, 1996. Accordingly, the same has taken - 4 - effect for the said date. At this juncture, it will not be out of place to mention that, according to the appellant - Trust, the the "CVOD Jain Caste" means entire Jain community of Mumbai. In their submission, the word "Caste" appearing therein does not have any reference to Mahajans or Mahajan Trust. 5. The appellant - Pathshala Trust further claimed that vide their letter dated 18th January, 1996 they did submit copy of the amended constitution along with copy of the old constitution with translation thereof in English to report change to the Deputy Charity Commissioner, Bombay for being recorded in the register of Bombay Public Trusts vide its covering letter dated 18th January, 1996. 6. The appellant - Pathshala Trust further claimed that the Chairman and Honorary Secretary viz. V.K.Korani of the appellant - Trust, by his letter dated 3rd April, 1996, addressed to the trustees of the respondent No.1 - Trust, had brought to their notice that the appellant - Pathshala Trust being governed by the Trust Deed dated 19th July, 1905, the trustees of the Pathshala Trust have been selected and nominated by the Jain Caste as such respondent No.1 - Mahajan Trust has no locus to interfere with their affairs. The very same stand - 5 - was reiterated by them in their another letter dated 7th March, 2000 addressed to the respondent No.1 - Mahajan Trust with further request to delete the clauses from the constitution showing their control and management over the appellant - Pathshala Trust but their request did not yield any result. 7. The appellant - Pathshala Trust alleged that they came across an item published in the magazine published by respondent No.1 - Mahajan Trust in Cutchi Visa Oswal Jain Khabar Patrika ("Khabar Patrika" for short) dated 14th June, 2003 as well as corrigendum dated 22nd June, 2003 stating that five trustees of the respondent No.1 - Mahajan Trust were appointed for the management of Palla Gully School. Consequently, appellant - Pathshala Trust claimed to have again approached the office of the Deputy Charity Commissioner vide their letter dated 16th June, 2003 to seek direction regarding status of the Pathshala Trust. Reliance was placed on correspondence between the appellant and respondent No.1 - so as to claim and reiterate their independent status. 8. The appellant - Pathshala Trust further claimed that they again came across one more notice in Khabar Patrika dated 10th October, 2003; wherein - 6 - Agenda No.3 of the said notice recorded that a meeting of Mahajan Trust was called on 11th October, 2003 to fix up the programme for election of five trustees to be appointed on the appellant - Pathshala Trust and also for appointment of election officer/committee to conduct election of the trustees. This was objected by the appellant - Pathshala Trust vide their letter dated 11th October, 2003 and request was made for a joint meeting of two Trusts to solve the doubts and settle the matter amicably. 9. The appellant - Pathshala Trust alleged that instead of fixing a meeting with the appellant - Trust, the respondent No.1 - Mahajan Trust, by its letter dated 18th October, 2003, questioned the status of the trustees of the appellant - Pathshala Trust. That, on being approached, the Deputy Charity Commissioner informed their office bearers that in order to solve dead-lock between them they should take legal advise and act in accordance with law. 10. According to the appellant, again they came across another news item published by respondent No.1 - Mahajan Trust on 14th January, 2004 regarding election programme for appointing - 7 - trustees to manage CVOD Jain High School and Shree Purbai Jain Kanya Shala run by them. In view of these series of developments, the appellant - Pathshala Trust claimed to have entertained a belief that respondent No.1 - Mahajan Trust is attempting to grab the control, take charge and interfere with the administration and management of the Pathshala Trust as such they were forced to file S.C.Suit No.552 of 2004 in the City Civil court at Bombay praying for order of permanent injunction to restrain respondent No.1 - Mahajan Trust and its trustees from interfering with the management, administration and appointment of the trustees of the appellant - Pathshala Trust. The appellant also claimed to have taken out Notice of Motion No.809 of 2004 for interim relief in terms of prayer clauses incorporated therein. 11. On being noticed, the respondent No.1 - Mahajan Trust appeared through counsel and opposed notice of motion taken out by them for interim relief. The respondent No.1 - Mahajan Trust by their counter affidavit sought to place reliance on certain documents placed on record in support of their contentions. The appellant claimed to have filed their rejoinder on 8th April, 2004 to reiterate their stand and to challenge the authority - 8 - of respondent No.1 - Mahajan Trust to interfere with their management, administration and also challenged their right to appoint trustees of the appellant - Pathshala Trust. 12. Learned Judge of the Bombay City Civil Court, Mumbai vide his initial order dated 9th February, 2004, was pleased to grant ad-interim relief, whereby respondent No.1 - Mahajan Trust was permitted to hold election with direction not to declare election results. Ultimately, on 17th June, 2004, after hearing the parties to the suit and notice of motion, learned trial Court vide its order dated 16th June, 2004 was pleased to dismiss the notice of motion with costs quantified in the sum of Rs.1,500/-, which was directed to be paid by the trustee Mr.V.K.Korani from his pocket to the respondent No.1 - Trust. 13. Being aggrieved by the aforesaid order, the appellant has invoked appellate jurisdiction of this Court to challenge the order of the trial Court dated 17th June, 2004 refusing to grant temporary injunction to restrain respondent No.1 - Mahajan Trust from interfering with the management, administration and appointment of trustees of the appellant - Pathshala Trust and asserted that both - 9 - the Trusts are independent; one being purely an educational trust governed by the Trust Deed dated 19th July, 1905, whereas another being purely a religious trust governed by the scheme framed by the High Court in the year 1941. The respondent No.1 - Mahajan Trust appeared on caveat to oppose the instant appeal. Events Events Events Pending Appeal : Pending Appeal : Pending Appeal : --------------------- --------------------- --------------------- 14. At the outset, Mr.Abhyankar, learned counsel for the appellant, in order to prove amendment to the constitution of the appellant - Pathshala Trust, sought to place reliance on one letter bearing No.212/1995-96 dated 18th January, 1996, said to have been written under the signature of one Mr.A.S.Khairat, to the Deputy Charity Commissioner, Mumbai, whereby the appellant - Pathshala claimed to have forwarded copy of the minutes of the meeting, certified copy of old constitution with amended constitution which was to take effect from 1st February, 1996. The carbon copy/ office copy of the said letter with acknowledgment under the seal of the office of the Deputy Charity Commissioner dated 16th February, 1996 was pressed into service to establish purported intimation of change in the constitution of the - 10 - appellant - Pathshala Trust to the office of the Deputy Charity Commissioner. This acknowledgement, prima facie; did not inspire judicial confidence of this Court. Consequently, the Deputy Charity Commissioner was directed to report as to whether or not the said letter dated 18th January, 1996 was received by his office and whether or not the entry of this letter finds place in their Inward Register. He was also directed to forward zerox copy of that particular page of the Inward Register with relevant inward entry, if it exist. 15. Learned counsel for the appellant, during the course of hearing had also produced one bunch of documents said to have been certified copies of entire proceedings in respect of the appellant - Pathshala Trust issued by the office of the Deputy Charity Commissioner under the signature of Superintendent (J), Public Trusts Registration Office, Mumbai said to be duly certified on 16th February, 2004. This bunch of papers at the end was attached or accompanied with four printed zerox pages bearing round seal of the office of the Deputy Charity Commissioner purported to be the amended copy of the constitution of the appellant - Pathshala Trust. These four printed pages did not bear any certificate certifying its authenticity as - 11 - such reasonable apprehension about its genuineness and authenticity was raised by learned counsel for the respondent No.1 - Mahajan Trust. In order to clear the doubt, the Charity Commissioner was directed to submit his report as to whether or not certified copies including last four pages referred to, said to be an amended constitution of the Pathshala Trust, were issued by his office and whether it forms part of the record of the appellant - Pathshala Trust maintained by his office. The bunch of papers including letter dated 18th January, 1996 produced at the time of hearing were retained on record and kept in sealed cover. At the same time, parties to the appeal were put on notice that considering the serious allegations, counter allegations and rival submissions, in the backdrop of the issues involved, the appeal would be finally heard and disposed of at the stage of admission itself. The trial court was directed to remit record and proceedings to this Court. 16. The Deputy Charity Commissioner, Greater Bombay forwarded his report dated 22nd July, 2004, inter alia, stating that the search of the inward register for the period of January, 1996 was taken but the said register of the period from 13th October, 1995 to 30th April, 1996 found to have been - 12 - destroyed under the routine destruction of record as per the order of the Charity Commissioner. He also forwarded the papers available with the office of the Deputy Charity Commissioner with respect to the appellant - Pathshala Trust, in which letter dated 18th January, 1996 did not find place. Report of the Deputy Charity Commissioner made it clear that there was no trace as to how the last four pages in Gujarathi language said to be the amended constitution came to be attached to the record and proceedings of the appellant - Pathshala Trust, which do not bear any seal as mark of the office of the Charity Commissioner. There is no date on the said document. There is no mention as to how this document found its entry in the record of the Deputy Charity Commissioner. The Deputy Charity Commissioner reported that it is not traceable as to how this document came to be attached to the record and proceedings of the appellant - Pathshala Trust. 17. The absence of letter dated 18th January, 1996 from record of the Deputy Charity Commissioner was put to the learned counsel for the appellant - Trust to seek his explanation. He replied that the papers forwarded by the office of the Deputy Charity Commissioner were incomplete. Consequently, again an order was passed by this Court on 28th July, 2004 - 13 - directing the Deputy Charity Commissioner to inform this Court as to whether any other record, other than the record forwarded to this Court, was still available in his office with respect to the appellant - Pathshala Trust. The Deputy Charity Commissioner submitted his report dated 3rd August, 2004 and forwarded all other remaining papers including change report proceedings pending for enquiry before him with respect to the appellant - Trust. The said change report was filed for the first time by the appellant - Pathshala Trust on 23rd June, 2004 i.e. after the impugned order was passed by the trial Court. 18. With the aforesaid material on record and with the assistance of the record and proceedings forwarded by the trial Court, this appeal was heard finally by consent of parties at the stage of admission itself. Contours Contours Contours of Rival Submissions : of Rival Submissions : of Rival Submissions : ----------------------------- ----------------------------- ----------------------------- 19. Mr.Abhyankar, learned counsel in a persuasive address on behalf of the appellant - Trust reiterated the facts leading to the filing of the suit as disclosed while sketching factual matrix - 14 - of this case in the opening part of this judgment. Mr.Abhyankar submits that the Pathshala Trust and Mahajan Trust are two duly registered independent public Trusts established to achieve two different objects. According to him, the appellant - Pathshala Trust is a purely educational Trust governed by the Trust Deed dated 19th July, 1905, whereas respondent No.1 - Mahajan Trust is purely religious Trust governed by the scheme framed by the High Court in the year 1941. According to him, both Trusts are functioning independent of each other and respondent No.1 - Mahajan Trust cannot have control over the management of the appellant - Pathshala Trust. According to him, the only link between the two Trusts is that, as per the scheme framed by the High Court, the trustees of respondent No.1 - Mahajan Trust have to allow portion of the Mahajanwadi at Palla Gully to be used for running schools by the appellant - Pathshala Trust for boys and girls. 20. In the submission of Mr.Abhyankar, the then Deputy Charity Commissioner - Mr.Argade, vide his letter dated 18th November, 1985 had unequivocally clarified that both the Trusts are independent of each other and that an attempt on the part of respondent No.1 - Trust in approaching High - 15 - Court, for getting its scheme amended, in such a way that management and administration of the appellant - Pathshala Trust could be controlled by respondent No.1 - Mahajan Trust was unwarranted, improper and not in the interest of the appellant - Trust. He further submits that the then Deputy Charity Commissioner in the said letter had further clarified that the administration and management of the appellant - Trust was governed by the trust deed and rules and regulations which were quite adequate and that there was no necessity to substitute a new mode of succession in place of a mode of succession provided in the trust deed of 1905. In his submission, the amended scheme was nothing but an attempt to grab the administration and management of the appellant - Trust and that new mode of succession could not have been thrust on the trustees of the appellant - Trust, when they themselves did not feel it necessary to change the mode of succession as laid down in the trust deed of 1905. He also placed strong reliance on the letter dated 18th November, 1985 issued by the office of the Deputy Charity Commissioner reiterating the views expressed in the said letter. 21. Mr.Abhyankar further urged that letter dated 18th November, 1985 issued by the then Deputy - 16 - Charity Commissioner was brought to the notice of respondent No.1- Trust by the appellant - Trust vide its letters dated 3rd April, 1996 and 7th March, 2000 but no steps were taken by them to challenge the said letter as such it is necessary to infer that respondent No.1- Mahajan Trust admitted the contents of the said letter and, thereby, admitted that the management and administration of the appellant - Trust could not be controlled by it. He further submits that the trial Court misinterpreted the word "Caste" appearing in clause-17 of the trust deed of 1905 which provides that trustees of the appellant - Trust shall be appointed by the "CVOD Jain Caste". In his submission, the word "Caste" means a community i.e. a Jain community of Bombay as a whole. In the light of this interpretation, Mr.Abhyankar submits that it could not have been held by the trial Court that it was the respondent No.1 - Trust which has the powers for appointment of trustees of the appellant - Trust. He further submits that based on his interpretation it ought to have been held by the trial Court that respondent No.1 - Trust has no power and right over the management and administration for appointment of trustees of the appellant - Trust in any manner whatsoever. He further submits that on several occasions the appellant intimated and put the - 17 - respondent No.1- Trust on notice that they do not have right over the management and administration of the appellant - Trust and also asserted that they were not parties to the scheme framed by the High Court as such it is not binding upon them. 22. Mr.Abhyankar further contends that the conduct of respondent No.1 - Trust in publishing item in Khabar Patrika on 14th January, 2004 regarding election programme of the schools run by the appellant - Trust was unwarranted and revealed an attempt on the part of respondent No.1 - Mahajan Trust to grab control and take over charge, management and administration with right to make appointment of trustees of the appellant - Pathshala Trust. 23. Mr.Abhyankar in his oral submissions asserted that the constitution of the appellant - Trust was amended and the change was reported to the Registrar of Bombay Public Trusts vide letter dated 18th January, 1996. In his submission, it was for the office of the Deputy Charity Commissioner to initiate necessary proceedings to consider the validity of the reported change. - 18 - 24. Mr.Abhyankar further argued that once the change is effected, it immediately operates notwithstanding pendency of the inquiry into the reported change until reported change is not finally rejected. It is only required to be reported to the Charity Commissioner within 90 days under section 22 of the Trust Act. In his submission, there is no requirement of law that the change must first be accepted, then only it is to be acted upon. He submits that the change immediately takes effect. It comes into effect as soon as it is effected. He placed reliance on the judgment of the Apex Court in the case of Managing Committee, Khalsa Middle School Khalsa Middle School Khalsa Middle School v.v.v. Mohinder Kaur Mohinder Kaur Mohinder Kaur, 1993 Supp (4) SCC 26 in support of his submission and compared the scheme of section 22 of the Trust Act with that of section 18 of the Companies Act. In his submission, both provisions are more or less similar. Mr.Abhyankar, while taking assistance of the Apex Court judgment in the case of Managing Committee, Khalsa Middle School v. Khalsa Middle School v. Khalsa Middle School v. Mohinder Mohinder Mohinder Kaur Kaur Kaur (supra) tried to draw and extend analogy of section 18 of the Companies Act to the provision of section 22 of the Trust Act and tried to press into service the principles laid down by the Apex Court in the said judgment in the following words. - 19 - "..... In the absence of any requirement in the Societies Registration Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect...." 25. Mr.Abhyankar to buttress his submissions relied upon the judgment of learned single Judge of this Court in the case of Chembur Trombay Education Chembur Trombay Education Chembur Trombay Education Society Society Society v. v. v. D.K.Marathe D.K.Marathe D.K.Marathe, 2002 (3) BCR 161 to contend that the above view has been accepted by learned single Judge of this Court. He, thus, tried to contend that the appellant - Trust is an independent Trust. It has amended its constitution. The amendment/change has been reported to the office of the Deputy Charity Commissioner under section 22 of the Trust Act. It has taken immediate effect as such respondent No.1 - Trust cannot have any control over the management and working of the appellant - Trust and its attempt to manage and/or interfere with the management of the appellant - Trust by foisting the trustees on them is unwarranted, illegal and without any authority of law as such the appellant is entitled to succeed in the appeal and entitled to