A.M. Khanwklkar, J.
1. This appeal takes exception to the order passed by the II Additional District Judge, Solapur dated June 13, 1997 in Civil Appeal No. 327 of 1996.
2. Briefly stated, the respondent Nos. 1 to 11 filed a suit before the Court of the Civil Judge, Senior Division, Solapur bearing Regular Civil Suit No. 1005 of 1991 for declaration and injunction. The respondent prayed that the order passed by the Charity Commissioner dated February 22, 1991 declaring the trust as a Public Trust is illegal and the same be set aside. The second relief claimed is that the Will on the basis of which the said Trust has been held to be Public Trust is itself void ab initio having been obtained by fraud. Further declaration is sought that the subject property be declared to be the private trust property. Besides the declarations prayed for, injunction is also prayed restraining the defendants from dealing with the suit property in any manner.
3. In the said suit the defendants filed their written statement. Defendant No. 5, the Charity Commissioner, filed application Exh. 73 requesting the Court to frame preliminary issue which reads as under :
'Whether, the plaintiffs prove that they have obtained permission under section 51 of the Bombay Public Trusts Act of Assistant Charity Commissioner to file the suit?'
This issue was required to be framed as a preliminary issue, as according to the defendant, the plaintiffs could not institute suit for such reliefs without obtaining prior permission of the competent authority in view of the mandate of section 50 read with section 51 of the Bombay Public Trust Act. This is the limited controversy that arise for consideration in the present appeal.
4. The trial Court after considering the rival submissions took the view that suit was not maintainable since no prior permission was obtained from the competent authority. According to the trial Court it was mandatory for the plaintiffs to obtain prior permission of the competent authority before instituting the suit in view of provisions of section 51 of the Act. Against this decision, respondent Nos. 1 to 11 herein original plaintiffs, preferred appeal before the District Court. The District Court on analyzing the relevant provisions and the pleadings of the parties took the view that the plaintiffs were seeking reliefs in their individual capacity and had filed the suit for enforcement of their individual right which matter was excluded from the operation of section 50 of the Act. The Appellate Court accordingly held that no prior permission under section 51 was required to be obtained before instituting the subject suit for the nature of reliefs claimed therein. In this view of the matter, the Appellate Court allowed the appeal and remanded the suit to the trial Court for framing necessary issues and to try and decide the same in accordance with law. This view taken by the Appellate Court is the subject matter of challenge in the present appeal from order.
5. According to Mr. Mandlik, learned Counsel for the appellants-original defendants Nos. 2 and 3, it was incumbent to obtain prior permission under section 51 of the Act before instituting the subject suit. He adopted the reasons given by the trial Court in support of his submission. On the other hand, according to Mr. Dhakephalkar, learned Counsel for the respondent Nos. 1 to 11 original plaintiffs, in view of the averments in the plaint and the nature of reliefs claimed in the suit, the plaintiffs, being third parties having no concern with the Public Trust as such, were not required to obtain prior permission under section 51 of the Act as contended by the appellants. He has in fact gone to the extent of contending that section 51 is only a supplementary statutory provision which cannot defeat the right of any person to institute a suit to espouse his own cause. Reliance has been placed on the decision of the Apex Court reported in 1986 M.L.J. 809, Shree Gollaleshwar Dev and others v. Gangawwa Kom Shantayya Math and others, Reliance has also been placed on the decision of this Court reported in 1986 M.L.J. 773, Vidarbha Kshatriya Mali Shikshan Sanstha by its President Shri Wasudeorao Dattaji Sonar v. Mahatma Fuley Shikshan Samiti, Amravati, through its President Ruprao Bhimrao Yawale.
6. Before adverting to the rival contentions it would be apposite to reproduce sections 50 and 51 of the Act, which read thus: -
'Section 50. In any case,
(i) where it is alleged that there is a breach of a public trust, negligence, mis-application or misconduct on the part of a trustee or trustees,
(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alliance, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee,
(iii) where the direction of the Court is deemed necessary for the administration of any public trust, or
(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof.
the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under Clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentions or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs:
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain enquiries;
(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, mis-application, misconduct or wilful default;
(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(h) a direction to apply the trust property or its income cypress on the lines of section 56 if this relief is claimed along with any other relief mentioned in this section;
(i) a direction authorising the whole or any part of the trust property to be let, sold mortgaged or exchanged or in any manner alienated on such terms and conditions as the Court may deem necessary;
(j) the settlement of a scheme, or variations or alterations in a scheme already settled;
(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;
(l) an order for winding up of any trust and applying the funds for other charitable purposes;
(m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;
(n) an order exonerating the trustees from technical breaches, etc.
(o) an order varying, altering amending or superseding any instrument of trust;
(p) declaring or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief or is necessary in the interest of the trust;
Provided that, no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof;
Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled;
Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of section 1.
Section 51-(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal.
(2) If the Charity Commissioner refuses his consent to the institution of the suit under sub-section (1) the persons applying for such consent may file an appeal to the Maharashtra Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1957, in the manner provided by this Act.
(3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party.
(4) Subject to the decision of the Maharashtra Revenue Tribunal in appeal under section 71, the decision of the Charity Commissioner under sub-section (1) shall be final and conclusive.
Besides the abovesaid provisions it would be relevant to advert to the definition of 'person having interest' as defined in section 2(10) of the Act, which reads thus:
Section 2. In this Act unless there is anything repugnant in the subject or context---
x x x
(10) 'person having interest' includes
(a) in the case of a temple, 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 persuasion 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 right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, maqbara or other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf,
(d) in the case of a society registered under the Societies Registration Act, 1860, any member of such society, and
(e) in the case of any other public trust any trustee or beneficiary.'
7. On conjoint reading of the aforesaid provisions it would appear that person or persons having interest in the Public Trust intend to file a suit for declaration in favour of or against a public trust or trustee or trustees or beneficiary thereof in relation to the matters specified in section 50 of the Act, then it would be necessary to obtain prior permission of the Charity Commissioner in the manner provided by section 51 of the Act.
8. However, in the present case, having regard to the averments in the plaint it would appear that the respondent Nos. 1 to 11- original plaintiffs have founded their claim on the premise that the subject will on the basis of which the Public Trust is alleged to have been created is itself a fraudulent document; and, if, the said Will was to be declared nullity and void ab initio as it were to be, as a necessary corollary-registration obtained as a Public Trust on the basis of such Will would be non est in the eyes of law. In the wake of these averments the suit for declaration has been filed by the plaintiffs. The plaintiffs claim that the original owner Rudrambikadevi had in fact created a private trust and she had expressed her intention that after her death the suit property would devolve upon plaintiff No. 1 who would then look after the affairs of the math.
9. The moot question, therefore, that arises is whether the plaintiffs can be said to be persons having interest in the public trust. The Act defines the expression 'person having interest'. Indubitably, the plaintiffs are not the trustees. Therefore, the next question that arises is whether it is possible to fathom that the plaintiffs are the beneficiaries of the Public Trust in any manner. To my mind, there is nothing on record to indicate that the plaintiffs are beneficiaries of the Public Trust in any manner, for nothing is brought to my notice in that behalf. On the other hand, the plaintiffs claim that they would be entitled to enjoy the said property as a private trust and have sought declaration in that behalf. Understood thus, it is not possible to take the view that the plaintiffs are persons having interest in the Public Trust as such. A fortiori, it was not for these plaintiffs to obtain prior permission of the Charity Commissioner as per section 50 read with section 51 of the Act.
10. Mr. Dhakephalkar has placed reliance on the decision of the Apex Court in Shree Gollaleshwar Dev (supra). In para 14 of the said decision the Apex Court has observed that it is clear from these provisions that section 50 of the Act created and regulated a right to institute a suit by the Charity Commissioner or by two or more persons 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. This view has been followed by this Court in Vidarbha Kshatriya Mali Shikshan Sanstha, 1886 M.L.J. 773 (supra). This Court in paras 4 and 5 of the said decision has analyzed the purport of section 50 of the Act and has held that if the matter in issue in the suit is outside the purview of section 50 of the Act and for the enforcement of persons own rights then it is not at all necessary to obtain permission from the Charity Commissioner. This Court has referred to earlier decision of this Court as well as Gujarat High Court to hold that the person would be entitled to enforce his civil rights by instituting the suit without obtaining prior permission. As observed above, in the present case, the assertions in the plaint are entirely distinct than the reliefs specified in section 50 of the Act, for which reason alone no permission of the Charity Commissioner was warranted to institute the present suit. The allegations in the present suit if proved, are one of fraud in obtaining registration as a Public Trust, which dispute is of civil nature to be tried and adjudicated by a Civil Court under section 9 of C.P.C.
11. On the other hand, Mr. Mandlik for the appellants has placed reliance on the Full Bench decision of this Court reported in 1972 M.L.J. 427, Keki Pestonji Jamadar v. Rodabai Khodad Merwan Irani. To my mind, the said decision is not an authority on the proposition which arises in the present case. In the said matter the Court was confronted with specific question as would be evident from the question framed in para 6 of the said decision. Essentially the question was whether the author of the trust was the lawful owner of the property of which he has created the trust or had otherwise authority to create the particular trust, covered by section 79 read with section 80 of the Bombay Public Trusts Act, 1950. In that sense the said question has been decided on the basis of fact situation of that matter. In any case, it is not an authority on the proposition that prior permission under section 50 read with section 51 of the Act is of quint-essence for maintaining suit before the Civil Court which seeks to enforce rights of civil nature within the purport of section 9 of Code of Civil Procedure.
12. I have therefore, no hesitation in taking the view that, having regard to the facts of the present case, the suit as filed by respondents 1 to 11, who are third parties-inasmuch as they are neither trustees or beneficiaries of the Public Trust, it was wholly unnecessary for them to obtain prior permission of the Charity Commissioner especially when the nature of reliefs claimed in the suit was for declaration that the subject Will was illegal and void ab initio. Unquestionably, such declaration or reliefs cannot be granted by the Charity Commissioner. The purpose underlying for obtaining prior permission is that the Public Trust is not put to avoidable expenditure by being embroiled in frivolous and vexatious litigation inter se the trustees or persons interested in the trust. Such is not the case on hand. In the present case, the plaintiffs are third parties and have sought declaration that the basis on which the Public Trust has been formed, that document itself is fraudulent and illegal. In that sense, the suit as filed by them was obviously to enforce their civil or personal rights. Accordingly, in such a situation, it would be wholly unnecessary to obtain prior permission of the Charity Commissioner. To my mind, the Appellate Court was right in allowing the appeal and remanding the suit for retrial.
13. It be noted that various other contentions were raised on behalf of the appellants that Civil Court will have no jurisdiction to grant the reliefs as claimed in the suit as the same would be barred by section 79 read with section 80 of the Act. However, that is not the scope of enquiry in the present appeal. Inasmuch as the sole question considered by the courts below is reproduced in para 3 above. All these questions will have to be examined by the trial Court after framing proper issues in that behalf.
14. This appeal therefore fails and is dismissed with no order as to costs.
15. Since the suit pertains to the year 1991 and having regard the nature of controversy involved, it would be appropriate that the trial Court would be well advised to dispose of the same expeditiously and preferably within six months from the receipt of writ of this order.
16. In view of the above order, C.A. disposed off.
Parties to act on the copy of this order duly authenticated by Sheristedar of the Court.