GOLLALESHWAR DEV AND ORS.

GANGAWWA KDM SHANTAYYA llATI! & ORS.

OCTOBER 15, 1985

[A.P. SEN AND D.P. MADON, JJ.]

Bombay Public Trust Act, 1950, sections 2(10), 50, 51 and 52(i) read with section 92 of Code of Civil Procedure, 1908, scope of - Whether two or more trustees of a registered public trust can with the permission in writing of the Charity Commissioner, bring a suit for declaration that certain property belongs to the public trust and for possession of the same from a person holding it adversely to the trust - Words and phrases - Meaning of the phrase "person having interest in the trust" occurring in section 2(10) of the Act - Persons having interest includes trustees and other beneficiaries -

The first appellant Gollaleshwar Dev is an ancient temple situate in village Golgeri in the district of Bijapur which formed part of the erstwhile State of Bombay prior to the reorganisation of the States. Consequent upon the enactment of the Bombay Public Trust Act, 1950, the temple was registered as a public trust. The district of Bijapur became part of the new State of Karnstaka on the appointed day i.e. November lat, 1956 under the States Reorganisation Act, 1956. The Bombay Public Trust Act continued to remain in force in the areas which formed part of the erstwhile State of Bombay. Appellant No.2 is the present trustee of the temple and appellant No.3 the grandson of ex-trustee Mariyappa the elder brother of appellant No.2 ia a beneficiary.

It had been cuatomary for the trusteea to permit persona rendering services to the temple to reside in auit premises on leave and licence basis. The respondents Shantayya and Smt.

Shankarawa, who were taken in the service of the temple and allowed to reside in the suit premises free of rent on condition that they were to occupy the said premises so long as their services to the temple were required, started creating trouble in the yur 1957 with the result the father of appellant No.2 terminated their aervices and asked them to vacate the suit premises. On their failure to do ao, he bro1J8ht two auita being Civil Suits Noa. 244 and 255 of 1957 in the name of the idol Shrea Gollaleahwar Dev ae plaintiff No.l with himself being

GOLLALESHWAR DEV v. GANGAWWA KDM SHANTAYYA 647

truatee aa plaintiff No. 2. The respondents contested the claim on variou3 grounds and pleaded inter alia, (i) that the temple had no right to title to the suit premi'SeS" which belonged to them by virtue of a.registered gift deed dated February 19,· 1917 executed by Mariyappa Lingappa the grandfather of appellant No. 3 in favour of their Predeceasor-in-title Balalochansyya Hiremath, the firat licencee of the suit premises; (ii) that the suits brought under section 50 (ii) of the Act were not maintainable for want of consent in writing given by Charity Commissioner under section Sl; and (iii) that the Court of the Civil Judge, Senior Diviaion,

Bijapur had no jurisdiction to entertain the suits. The suits were diamiaaed aa not maintainable in view of the deciaion of the Myaore High Court in Haritnl>a Tesple mid llsnomnt Teq>le, Sirsi, by ita IW!qer, S.S. Illakappa v. Sahraya. Venkatara::amppa J!&rkar

reported in l.L.R. 19S8 Mycre 736. Thereafter a Fresh Civil Suit No. 2 of 1962 was instituted before .the District Judge, Bijapur after obtaining the consent in writing of the Charity Co:miaaioner by the appellant No. 2 's father aa plaintiff No. 2 and the • idol aa plaintiff No. 1. Later.Appellant No. 3 in the capacity of

a beneficiary And Appellant No. 2 in the capacity of the present truatee were icplu.ied aa plaintiffs Noa. 2 and 3 aa •percons interested in the truat•. The High Court in the Jlle&nW!Ule had. reversed the decision in Marikamba' s case in Ganapathi 11.ua llaik l .&nr. v. J:a:t& Slir1. Venltatarzun De .. reported in 1964 l Mysore L1 172. Follovicg thta. said D.ll. decision in the Diatrict Judge held.that, •although a suit for reeovery of property belonging to

the idol could be brought either by the idol represented by the \ turatee or the ..anager; auch a suit is not contemplated by section SO(ii) of the Act and waa therefore not maintainable and that auch a auit would be a governed by the ordinary law and would not lie in the District Court, but either in the Court of ·. _the Civil Judge, Junior Division or the eourt of 'the Civil Judge, Senior Division according to the valuation of the subject matter of the _ suit.• Aggrieved by the said judgment the appellants preferred an appeal before the High Court. A Division lle~'i which - heard the appeal felt that the decision in Genapathi laa's case _ requiredcreconsideration and referred the matter for the opinion of the Full Bench. The. Full Bench upon - the hypothesis that aec:t1on SO of the Actis in pari materia with section 92 of the Coda of Civil Procedure expressed that _ the well-settled principles governing section 92 - of the Code - are equally applicable to section SO of the Act. It accordingly held: . (i) that the suit contemplated by section SO of the Act was one of a representative character; (ii) that a suit by .a deity_ for posses- - - aion beillg a suit for vindicating . its own personal rights

• H

_ _. ___ _.,____:__ _____ ~

SUPREME COURT REPORTS [1965] SUPP.3 s.o.R.

wu not governed by section 50 of the Act thst parsons wllo

institute suits in their capacity as trustees do so not in their representative capacity representing the interests of the public but in their own indiVidual or personal capacity to vindicate thrlr own rights or that of the idol that is to say, merely becauae trustees were persons having interest in the trust the proviaiona of section 50(11) of the Act WOUld not be attracted to a 1u1t of this kind. Upon that view the full Bench answered the question referred to it as follows: (i) the expression "persons having interest in the trust" occuring in section 2(10) and aection 50 of the Act does not include the trustees when they institute the lluits in their capacity as trustees for vindicating tbair private rights; and (11) consequently two or more trustees or a public trust C811110t file a suit under section 50(11) of the Act for a declaration that the property belongs to the public

trust aad for po1flsaion of the s11111e from a person holding it adveraely to the trust. In accordance with the opinion of the Full lltnch, the l>ivsion Bench diSll!issed the appeal filed by the appellant•• Hence the appeal by special leave.

Al1ow1ng the appeal, the Court

lllUl : l. l The expression "person having interest" in a trust occurring in section 2(10) and section 50 of the Bombay Public Trust Act csrmot be given a restrictive construction. The def1n1t1on of the expression "person having interest" in section 2 (10) being an inclusive one, there is no lawful justification to exclude the suit brought by two or more trustees in the Il8llle of the idol, to recover possession of its property against s person holding it adversely to the trust fr<llll the purview of section 50(11) of the Act. The definition of the words "person having interest" in section 2(10) of the Bombay Public Trust Act, u amended in 1953 vu made inclusive to set at rest all doubts and difficulties u to the meaning of these words, which were intended and meant to be used in a generic sense so as to include not only the trustees but also the beneficiaries and other persons interested in the trust. The definition of the expression

"peraon llaVing 1Iiterest" in section 2(l0) is wide enough to include not ... rely the beneficiaries of a temple, math, wakf etc. but alao the trustees. Therefore appellants Nos. 2 and 3 who uod<lllbtedly are members of the founder's family i.e. benefkiariea, are entitled to attend at performaoce of worship or 1ervicas in the temple and also entitled to partake in the dietribution of offerioaa to the deity and thus answer the deacription "person havi11& interest" as defined in section 2 (10) of the Act. [657 A-0; 660 A-BJ

OOLIALESIMAll. DEV v, GANOOJWA l<OM SHANTAY'lA 649

1.2 Provfaioas contained 14 •ecti41111 so to sa of tlie llombay Trust Act make it clear that the Act c:rasud and regulated a right to institute a suit by the Charity Coimdasioner or by tlio or more persona interested in the trust, in the fom of suppl.elllentary statutory provid-Ollll without d$feaa&DCe of the right of the unsger 0r a trustee or 4 shabait of an idol to bring a suit in the name of idol to tver the ptapetty of the trust in the uaual way. Further, although aub""fiectiott

(1) of section 52 makes sections 92 alld 93 of the Code of Civil Procedure inapplicable to public trust registered under tl!e Act, it has lll!lde provision by section 50 for illlltitutiou of suc:lt suits by the Charity Comnissioner ot by two or more parsOllS interested in the trust and haviag obtained the conamt in writing of the Charity Comnissioner under section 51 of the Act• Therefore, any tw or more persous interested in the trust sbould not be deprived of the right to bring a suit as contemplated by section 50(11) (a) of the Act. [658 ll-F]

1.3 Section SO of the Bombay Trust Act is not in m!_ mat!!ria with section 92 of the Code of Civil Procedure. Although

section 50 of the Act ie atructured upon the pattern of section 92 of the Code of Civil Procedure, there is no provision in section 92 of the Code analogous to clause (ii) or relief (a) of section 50 of the Act. Section 50 authoriaes the institu, tion of a suit by the Charity Conru.ssioner or two or more persons interested in the trust only in the District Court ving jurisdiction to try it. The scope of section 50 of the Act iii wider th8!1 that of section 92 of the Code of Civil Procedure; lt applies to a case so long as the relief claimed f4lla withili the scope of the eection. one of the reliefs that can be c1s1med in a suit brought tlllder eection 50 of the Act is that covered by relief (a) set out in clause (ii) oamely for a declaration that a certain property belongs to a public truat and for possesaion thereof from person holding it adversely to the trust vit. a suit brought by the Charity c:.-i.aaioner or two or more persou interested in the trust with hia CODMent in lll'iting as provided in section 51 of the Act. Section 50 of the J!ombsy Trust Act contemplated not only suits of a representative character bUt also suits by two or 110re trustees for preservatioo of the property of the trust. Therefore, in a suit filed by the idol to enforce its private righta, the prOViaiona of section 92 of the Code of Civil Procedure are not attracted. [6S9 IHl)

Bia'-th ' .&ar. .,, Sbr1 'lbabr Xedl!a\wll•111lji ' on. [1967) 2 s.c.ll. 618 diatillguiahed.

650 SUPRJ'l1E'COURT REPORTS [1985] SUPP.3 s.c.R.

Ganapathi Baa Haik v. Kuiota 5brf. VeDkataramon Dev, I.L.R, 1963 Mysore 1059 overruled.

Sbree Gollales!mr Dev & Ors, v. Gsugawa lolll Sbmtayya !lath i Ors., A.I.R. 1972 Kart (F.B.) p. reversed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1195 of 1972.

From the Judgment and Decree dated 19.10.1971 and 5.4.1971 of the Mysore High Court in Regular First Appeal No. 57 of 1967.

S.S. Javali and B.P. Singh for the Appellants."

R.B. Detar for the Respondents.

The Judgment of the Court was delivered by

SEN, J, This appeal on certificate from the judgment and decree of the Karnatal<a High Court dated April 5, 1971 raises a question of general public importance. The question is whether two or more trustees of a registered public trust can, with the permission in writing of the Charity Commissioner as provided for in s • 51 of the Act, bring a .suit for declaration that certain property belongs to the puolic trust and for possession of the same from a person holding it adversely to the trust under s.SO(ii) of the Bombay Public Truats Act, 1950. That depends on whether the words 'persons having interest in the trust occurring in •· 2(10) and s.50 of the Act do or do not include the trustees of a registered public trust. If they do not, two or more trustees cannot file a suit as contemplated by s.SO(ii) of the Act. There had been a divergence of opinion in the High Court as to the precise meaning of the words 'persons having interest in the trust' in s.2(10) and s. 50 of the Act and as conflicting views had been expressed by different Benches from time to time, the matter was referred to a Full Bench. The correctness of the view taken by the Full Bench is in question in this appeal.

Put very briefly, the essential facts are these. Shree Gollaleshwar Dev is an ancient temple and Is situate in village Golgeri in the district of Bijapur which formed part of the erstwhile State of Bombay prior to the reorganization of the

States. Consequent upon the enactment of the Bombay Public Trusts Act, 1950, the temple was registered as a public trust. The district of Bijapur became part of the new State of Karnatal<a on

GOLLALESHWAR DEV v, GANGAWWA KOM SHANTAYYA

[A. P. SEN, J, ] 651

the appointed day i.e. November 1, 1956 under the States Reorganization Act, 1956. The Act has continued to remain in force in the areas which formed part of the erstwhile state of Bombay.

It had been customary for . the trustees tp permit persona B rendering services to the temple to reside in the suit premises on leave and licence. The subject-matter in dispute conaisting or arches alongside the eastern, northern and southern walls of the temple are meant for the use of devotees for their temporary rest and stay, when they come to visit the temple. The main temple itself is situate in the middle surrounded by an open courtyard. c The suit premises being within the four walls of the temple, they form part of the temple and are entered in the certificate of registration as belonging to the temple.

lt appears that plaintiff no. 2's uncle Mariyappa Lingappa permitted one Balalochanayya Hiremath to reside in a part of the o suit premises as he happened to be a man of saintly pursuits and one without a family.

Subsequently, Balalochanayya left the premises occupied by him. Thereafter, plaintiff no. 2's father as the trustee employed two brothers, Rachayya and Gurunandayya to perform services for the temple and he assigned the suit premises to them for their residence with a view that they should E be allowed to occupy the premises free so long as the trustees allowed them to remain in occupation and so long as they were retained in the service of the temple. They were to remain ir. , occupation of the •uit premises as licensees of the trustee of the temple. Rachayya and Gurunandayya started asserting rights derogatory to the trust. Accordingly, plal.ntiff No. 2's father as the trustee filed Civil Suit No. 96 of 1935 in the Court of the F Joint Civil Judge, Bijapur and the learned Civil Judge by his judgment dated August 8, 1936 decreed the plaintiffs' claim. The defendants went up in appeal to the Court of the District Judg~ in Regular Appeal No. 109 of 1936 but the appeal was dismissed on November 22, 1937. Thereafter, plaintiff no. 21s father terminated the services of Rachayya and Gurunandayya and called on them G to vacate the suit premises, which they did. After Rachayya and Gurunandayya were removed from service of the temple, Shantayya, brother of Rachayya and Smt. Shankarawa, widow of Gurunandayya were taken in service of the temple and allowed to reside in the suit premises free of rent on condition that they were to occupy the said premises so long as their services to the temple were cequired. ln 1957, Shantayya along with Smt. Shankarawa also H started creating trouble and plaintiff No. 2's father, accordingly. terminated their services and asked them to vacate the suit

652 SUl'RllME COUil.t REPORtS [1985] SUPP.3 s.c.a.

premises. On their failure to do so, he brought two suits being Civil suits Nos, 244 and 255 of 1957 in the name of the idol Shree Gollaleshwar Dev as plaintiff no. 1 with himself being the trustee as plaintiff no. 2. The case of the plaintiffs was that the defe., dants were in occupation of the said premises with leave and licence of the trustee of the temple and as they refused to

deli'ler possession of the suit premises, the suits had been instituted for a declaration that the property belongs to the temple and for possession thereof. The defendants contested the plaintiffs' claim on various grounds. They pleaded inter alia, that the temple had no right or title to the suit pr~ WiiiCh belonged to them by virtue of a registered gift-deed dated February 19, 1917 executed y Mariyappa, uncle of plaintiff no. 2 in favour of their predecessor-in-title Balalochanayya, that there was no consent in writing given by Charity Comnissioner under s. 51 and therefore the suits brought under s. 50(ii) of the Act were not maintainable; and further that the Court of the Civil Judge, Senior Division, Bijapur had no jurisdiction to entertain the suits. The learned Civil Judge following the decision of the Mysore High Court in llarikaliba le and Hem-nt Tl!llpl.e, Sirsi, by its Manager, S.S. llYkappa V• Subraa Venkatsraunappa llarlwr, I. L.R. 1958 Mysore 736, upheld these contentions and dismissed the suit as not maintainable.

It was after this that the present suit was brought by the aforesaid plaintiffs in the Court of the District Judge, Bijapur as Civil Suit No. 2 of 1962 under s. 50(11) of the Act for the aforesaid reliefs, with the consent in writing of the Charity Commissioner granted under s. 51. As earlier, the suit was instituted by appellant no. 2's father as plaintiff no. 2 in the nallle of idol shri Gollaleshwar Dev as plaintiff no. 1. Plaintiff no: 2 was imp leaded as the present trustee of the temple and plaintiff no. 3 as the grandson of Mariappa, the elder brother of plaintiff no. 2. as a beneficiary. Plaintiffs. nos. 2 and 3 joined the suit as 'persons interested in the trust' • The High Court in the meanwhile had reversed the decision in llarikmlba's case in Genapathi Ram Naik ' ~· v. iu&4 Sbri Venkatraman lleY, 1964 1 Mysore L.J. 172, The learned District Judge following the decision in Ganapatbi limo Nailt's case held that although a suit for recovery of property belonging to the idol could be brought either by the idol represented by the trustee or the manager, • such a suit is not contemplated by s. 50(11) of the Act and was therefore not maintainable. It was observed :

"The words 'persons having interest in the trust' in s. 50 denote a person whose interest is inferior to

GOLLALESllWAR DEV v. GANGAllWA !(OM SllANTAYYA [A.P. SEN, J, j 653

that of a trustee or iaaoager and it ia by rqaon of the exiatence of that inferior or Slll!lllar intereat that s. 50 Qf the Act lil<e s. 92 of the Codo! of Civil Procedure, 1908 autboriaes th11 instituti<1n of a auit and regulatea it in the -r pr<1vided. therein. But that section d<>es not govern the institution of a auit by a per!l<ln posaeaai~ 4rgtr o.nd higher intereet B whicll ilJ not regulated by H•"

The l.Qd diatrict Judge aecordiogly held th!lt 111JCh a sl!it would be governed bY the ordinilry law and wuld oot lie in tile

Diatrict Court but either in the Coll!'t <>f the CivU Jud, ge, Junio; r; Diviail>n Pr the C9urt of the C.ivH J!ldge, h!lior Piv.iaion, 11CeOrdi11i w tile val1111tiPn l>f the subj flct'"lll!lttflr pf the .suit.

4, ggri11vad by th<! j!JdgJ!l!!l!t l>f tll!I l>istrict J!ldgl! tbe appell!Ulte preferred an appe!ll bl!f!lre tbe 111, gll Qi1.1rt. A l>f.viaion Be!ldl which heard the appeal felt that th!! decisio11 in C z •1 ' 8-'11 se required reconaideratio11 and framed two !j-t~ for o the opi!li1111 of the Full llench, -l; y :

1. Whl!ther the expression 'perai>ns h!ivi11g int-t iii tll!I tJ:USt' !>ceu<r!nj! i11 .a. i(lO) I'm\ fl• W 9f the Act l.11cl!!!le11 trt:eM Jll119.

2. tlu!r Pl!> 11r !ll<>r!l tr!J'!tefl!I ot ll pl.IP1,1.c tJU!lt e!UI fU.e a 1111it fgr dee4r11t!o~ thet 11 P!1!>Pllrt1 b!>los tQ

the publi<: trust and for rM.Ov11ry of po11ae11111011 of tha BlllllB fi:om s person holding it adversely l:o ibe Ul.lat Ullder s, 50 (ii) of the Act.

'l'he F1.1U l!!lnc:h up<m tllfl hypotliesis t))at a.$0 of !:he Act i• f' ill pad J11Steri11 Witli a• 9' lilf !:he Cod!> l!llj>l=M!ll!4 tll!!t Wl ll!lttlfl!I prJ.Jl.Cij)~11 $9Yllml.IJI! 11. 11£ ti:!!! Cod!! 11r11 e!Jll!lll111Pl'l4- &iablfl to ,., 50 1>.f the ~~. II; 11"!10rli!<Wl1 l!llU f11l~11j ~

4eis19.11 of w~tfe, .J. i.11 ~ ,,. w ~. !.i..P.. (1006) ,:U C!!l .• 7W! 11t p,!Jl)7, !!!!II VIWWPa oUlllr 4ei:1s!!>l!!l 9f 4iffflrflllt Hl.jli) <%>!1rj:s U}'iJW 4l:be II~ 1>U1><:t of 1'• 9Z of !:he 0>4e l!lld ~. B.K, '*'111lerJe4'11 Jqor<1 iaw

J.ect11res on the llin4u Law pf lletio!ls and Oiad~JA Truate, 3rd e!i.11., J'- 347, that the 1111it j:Olll:emplli!ted by ll• 50 of .A¢ 1tU 9lle of 11 r11pres11Jl.tativ11 i; her.B!lter• 'l'he 1>beerv.11t:l.9!!.a of W®dJ:!lff<1, + ill tlJ4 !:4Se Of ~ 'l'• ..,. (eupr.a) flhLgb 1!1111 b@"- th§ .~ clal!.siCllll """r!! !:!I !:be d.fieas ~" -

654 SUP!ill'.E COURT REPORTS [1985] SUPP.3 s.c.R.

"The suit contemplated by the section is one of a representative character.

It is obvious that the Advocate-General, Collector or other Public Officer can and do sue only as representing the public and if, instead of these public officers, two or more persons having an interest in the trust, sue with their consent, they so sue under a warrant to represent the public as the objects of the trust : see UW!Jwawlas Baglnl!N!th Das

v. Jugal 1.ishore, I.L.R. (1896) 22 Bom. 216, 220.

It follows from this that when a person or persons sue not to establish the general member or members, but to remedy a particular infringement of their own individual right, the suit is not within or need not be brought under the section."

It next relied upon the decision of this Court in Bishwauath & Anr. v. Sbri Thakur lladbaballabhji & Ors. (1967] 2 s.c.R. 618, laying down that a suit by an idol, as a juristic person against persons who interfered unlawfully with the property of the idol, was a suit for enforcement of its private right and was therefore not a suit to which s. 92 of the Code applied and thus such a suit was outside the purview of s. 92 of the Code and it was not a bar to its maintainability, for the conclusion that a suit instituted by the idol represented by its trustees or by presons as qua trustees for recovery of trust property ia a suit for enforcement of the private rigts of the idol or the trustees.

The Full Bench approved of the view expressed by Somnath Iyer and Gopivallabha Iyengar, JJ. in Ganapathi llam Naik v. Komt> Sbri Venkatarllllall Dev I.L.R. (1963) Mys. 1059, that a suit by a deity for possession being a suit for vindicating its own personal rights was not governed by s. 50 of the Act but disagreed with it on the construction placed by it upon the words 'person having interest' in s.2(10) and s. 50 of the Act. The Division Bench in Genapathi llaa's case held th8t the expression

'person having interest 1 denotes one whose interest is inferior to that of a trustee or a manager and it is by reason of existence of that inferior or smaller interest that s. 50 of the Act, like s. 92 of the Code authorises the institution of a suit and regulates it in the manner provided therein. It was of the view that s. 50 of the Act does not govern institution of a suit by a perso~ possessing larger and a higher interest which is not regulated by it, and differed from the view taken by Hegde, J. in

GOIJ.ALESllWAR DEV v. GANGAWWA KOM SHANTAYYA

[A. P. SEN, J. J 655

A Shrl Harikubs Temple v. Subraya Venkataruauappa,

I.L.11., (1958) Mys. 736, holding thst a suit by an idol represented by the trustee was governed by s. 50 of the Act. The Full llE!nch accordingly held thst persons who institute suiu in their capacity as trustees do so not in their representative capacity representing the interests of the public but in their own 8 individual or personal capacity to vindicate their own rights or that of the idol. That ls to say, merely because the trustees were persons hsvl.ng interest in the trust, the provisiona of s. 50(11) of the Act would not be attracted to a suit of this kind.

Upon this reasoning, the Full Bench observed :

c 11It ia, therefore, clear that the expression ntwo or more persons having an interest in the trust" in s. 50 of the Act cannot include the trustees but persons other than the trustees who have an interest in the trJSt. The reason for holding thst the expression "two or more persons having an interest in the trust" cannot be construed to include trustees, is not because the trustees are not persons interested in the trust but because of the character of the. suit contemplated under s. 50 of the Act.

The remedy of the idol represented by its trustee or E of the trustee• to enforce their individual rights ls not to institute a suit under s. 50 but to sue in the

ordinary courts in the usual way as any other citizen, and for such a suit, the trustees are not required to satisfy the conditions of s. 50 of the Act. A suit for recovery of trust property instituted by a trustee not because one for enforcement of the right of the public, but being merely for enforcement of the private rights of the trust or trustees, does not, in our opinion, fall within the scope of section 50 of the Act."

Upon that view, the Full Bench answered_the questions referred as G follows :

1. The expression "peraons having interest in the trust" occurring in s. 2(10) and s.50 of the Act does not include the trustees when they institute the suits

in their capacity as trustees for vindicating their private rights.

2. Consequently, two or more trustees of a public truat cannot file a suit under s.50(11) of the Act for

SUPRF.ME COURT REPORTS [1985} SUPP.3 s.c.R.

a declaration that the property belongs to the public trust 1md for possession of the same from a person holding it adversely to the trust.

lr) accordance with the opinion of the Full Bench, the Division Bell4lh dismissed the appeal filed by the appellants.

&!fore we advert to the argllJilent based on s.50 of the Act, it should be 100ntioned that it is undisputed that the temple of Shree Gollaleshwar ilev is a public temple registerl'd as a public trust un4er the provisions of the Act The plaintiffs suing are, first, the idol, second, a trustee, and third, a member of the f!llll!ly creating the endowment i,~. a bel!1lficiary. The question is whether the plaintiffs nos, 2 and 3 are persons having an

interet in th~ trust within the meaning of 5,2(10) which reads

"2(10) "Person having interest" includes -

(a) in the case of a temple, a person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple, or who is entitled to partake or is in that habit of partaking in the distribution of gifts thereof;

(b) in the case of a math, a disciple of the math or a person of the religious pursuasion to which the math belongs ;

(c) in the case of a wakf, a person who is entitled to receive any pecuniary or other benefit from the wakf and includes a person who has a right to worship or to perform any religious rite in 11 JjlQSque, idgah, imambara, dargah, maqbara or other rijligious institutions connected with the wakf or to participate in any religious or charitable institution un4er the wakf;

(d) in the case of a Societies Registration society; and

society reghtered under the Act, 1860, any JDe111ber of such

(e) in the case of any other public trust, any beneficiary."

H The word 'trustee' as defined in s. 2(18) rellde 1

GOL!ALESf!WAR DEV v. GANGAWWA KOM SHANTAYYA

(A, P. SEN, J,] 657

"2(18). "trustee" means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager;"

By the Bombay Public Trusts (Amendment) Act, 1953, the word includes' was substituted for the word 'means', The definition of the words 'person having interest' in s.2(10) was made inclusive to set at rest all doubts and difficulties as to the meaning of these words, which were intended and meant to be used in a generic sense so as to include not only the trustees but also the beneficiaries and other persons interested in the trust. lt would therefore appear that the definition of the expression

'person having interest' in s.2(10) is wide enough to include not merely the beneficiaries of a temple, math, wakf etc. but also the trustees. lt must therefore follow that plaintiffs nos.2 and 3 who W1doubtedly are members of the foWlder's family Le. beneficiaries, are entitled to attend at performance of worship or service in the temple and also entitled to partake in the distribution of off ering9 to the deity and thus answer the description 'person having interest' as .defined in s.2(10) of the Act.

Section 50 of the Act on the construction of which the appeai depends, insofar as material, provides as follows :

"SO. In any case -

(i) * * • * * * *

(ii) where a declaration is necessary that a particular property is a property belonging to a public trust or where a direction is required to recover the. possession of such property or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or

(iii) where the direction of the court is deemed necessary for the administration of any public turst.

The Charity Commissioner or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in Section 51 may insLitute a suit whether contentious or not in the court within the local limits of whose jurisdition the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following reliefs :

SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

(a) an order for the recovery of the possession of such property or proceeds thereof."

Sub-section (1) of s. 51 of the Act which also has a material bearing, reads :

"51(1) If the persons having an interest in any public trust intenJ to file a suit of the nature specified in section

SO, they shall apply to the Charity

Commisioner in writinll for his consent. The L'harity Commissioner, after hearing the parties and after making such inquiry as he thicks fit, may Yithin a period of six months from the date on which the application is ma.de, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in riting and shall state the reasons for the refusal."

Sub-s.(l) of s.52 of the Act provides that notwithstanding anythilll! contained in the Code of Civil Procedure, 1908, the provisions of s. 92 of the Code shall not apply to the public trusts governed by the Act.

It is clear from these provisions that s.50 of the Act created and regulated a right to ir.stitute a suit by the Charity Commissioner or by two or more person interested in the trust, in the form of supplementary statutory provisions without defeasance of the right of the manager or a trustee or a shebait of an idol to bring a suit in the name of idol to recover the property of the trust in the usual way. There is therefore no reasod why the two or more person interested in the trust should be deprived of the right to bring a suit as contemplated by s.50(ii)(a) of the Act. Although sub-s. (1) of "' 52 makes ss. 92 and 93 of the Code

itlllpplicable to public trusts registered under the Act, it has made provision by s. 50 for institution of such suits by the Charity Colllllissioner or by two or more persons interested in the trust and having obtained ttle consent in writill6 of the Charity Comnissioner under a. 51 of the Act.

We are unable to subscribe to the view expressed by the High Court. Although the Full bench rightly adverted to su~. (1) of s. 52 of the Act which excludes the applicability of ss.92 and 93 of the Code to the public trusts governed by the A.:!t, it was not right in its conclusion that a snit instituted by the idol represented by two or more trustees, wit"h the 'W-ritten consent of

GOLLALESHWAR DEV v. GANGAWWA KOM SHANTAYYA

[A.P. SEN, J,] 659

the Charity Commissioner as provided in s. 51 of the Act, was not within the purview of s. 50(ii)(a) of the Act and therefore could not be brought in the Court of the District Judge. Although s. 50 of the Act is structured upon the pattern of s. 92. of the Code, the Full Bench failed to appreciate that there is no provision in s. 92 of the Code analogous to cl. (ii) or relief (a) of s. 50 of the Act. It will be seen from s. 50 that the section authorizes the institution of a suit by the charity Commissioner or two or more persons interested in the trust only in the District Court having jurisdiction to try it. The scope of s. 50 of the Act is wider than that of s. 92 of the Code. It applies to a case so long as the relief claimed falls within the scope of the section.

One of the reliefs that can be claimed in a suit broughtunder s. 50 of the Act is that covered by relief (a) set out in cl. (ii) viz. for a declaration that a certain property belongs to a public trust and for possession thereof from a person holding it adversely to the trust viz. a suit brought by the Charity Commissioner or two or more persons interested in the trust with his consent in writing as provided in s. 51 of the Act.

The fallacy underlying in the reasoning of the Full Bench lies in the wrongful assumption that s. 50 of the Act is in~ materia with s. 92 of the Code. It is upon that erroneous hypothesis that it observes that the suit contemplated by s. 50 of the Act is one of a representative character. It overlooks the scope and effect of s. 50 of the Act which contemplates not only suits of a representative character but also suits by two or more trustees for preservation of che property of the trust. The reasoning of the Full Bench that if the suit is filed bv the idol to enforce its pri.,; ate rights, the provisions of s. '92 of the Code are not attracted and a fortiori the same principles equally govern suits under s. 50 of-the Ac.t, is not worthy of acceptance.

The Full Bench was also wrong in relying upon the decision of this Court in Bisbwanath's case which turned on the construction of s. 92 of the code. In that case, it was held that the bar of s. 92 did not apply to a suit by an idol or by its trustees for a declaration that the suit properties belonged to the trust and for possession of the same from persons holding the properties adversely to the trust inasmuch as such a suit is not a suit of a representative character instituted in the interests of the public, but is really a suit for the vindication of the individual or personal rights of the deity or the trustees. The decision in Bisbwanath 's case is therefore clearly distingui.shable and the principles laid down as to the applicability of s.92 of the Code to such suits are not attracted.

F •

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A There is no warrant for the reatrictive construction placed by the Full Bench on the expression 'person having intereat' in a trust occurring in s. 2(10) and s. 50 of the Act. The definition of the expression 'person having interest' in s. 2 (10) being an inclusive one, there is no lawful justification to exclude the suit brought by two or more trusteea in the name of the idol, to B recover possession of its property against a person holding it adversely to the trust from the purview of s. 50(ii) of the Act.

In the result, the appeal succeeds and is allowed with costs. The judgment and decree of the High Court affirming those passed by the District Judge, Bijapur are set aside and the plaintiffs' suit for declaration of title to and for c possession of the suit property together with mesne profits is decreed.

S.R • Appeal allowed.