V.M. Kanade, J.
1. The appellant is the original defendant No. 1, the respondent Nos. 1 to 7 are the original plaintiffs and the respondent No. 8 is the original defendant No. 2, (for the sake of convenience, the parties will be referred to as 'plaintiffs' and 'defendant Nos. 1 and 2') FACTS
2. The plaintiff, Vithalrao Motiramji Mandale, had filed the suit for possession and damages against the defendant No. 1 - Trust and defendant No. 2 Vasant Mahadeorao Fartode. The case of the plaintiff, in brief, is that plot No. 57 was owned by defendant No. 2 Vasant Mahadeorao Fartode and it was carved out of Survey No. 33 and converted into a plot. The plaintiff intended to purchase the said plot and, therefore, he published a Notice in daily 'Matrubhumi' dated 2-10-1982 inviting objections in respect of the said plot and since no objections were received, he purchased it from defendant No. 2 by a registered sale deed dated 14-10-1982 for a total consideration of Rs. 17,000/-. On execution of the sale deed, the plaintiff was put in possession of the suit field. The case of the plaintiff is that when he wanted to put a fence around the said plot and had started the fencing work on 4-12-1982, after couple of days, when he went to complete the work of fencing, he found that there was a board which was put up on the said plot, on which it was mentioned that the defendant No. 2 had given the said plot to the Trust. The plaintiff issued a notice to the defendant No. 1 on 7-12-1982 asking the Trust to remove the board and fencing from the plot. However, the defendant No. 1 gave a reply on 23-12-1982 and alleged that they were the owners of the said plot. The plaintiff, therefore, filed the suit for possession.
3. The defendant No, 1 filed its written statement and it was contended thatthe defendant No. 2 had donated the said plot to defendant No. 1 by virtue of gift-deed dated 31-1-1974 and as such, after 31-1-1974 defendant No. 2 was divestedof the title. The trial Court framed issues and the suit was partly decreed. Theplaintiff's claim for recovery of possession of the suit plot was dismissed.However, the defendant No. 2 was directed to return the amount of Rs. 17,500/-to the plaintiff with costs along with future interest at the rate of Rs. 10/- per centper annum.
4. The plaintiff preferred an appeal before the Additional District Judge, Amravati. The defendants also filed cross objections challenging the findings of the trial Court in respect of the gift-deed. It is contended by the defendant No. 1 that the lower Court ought to have held that the gift-deed dated 31-1-19,74 was admissible in evidence and was enforceable in law. The lower appellate Court came to the conclusion that the gift-deed in favour of the Trust was not admissible in evidence and it was an unregistered document and did not fulfil the conditions required under Section 123 of the Transfer of Property Act and that it did not give any title in favour of the defendant No. 1. The lower appellate Court also confirmed the findings of the civil Court which held that considering the nature of the suit, it was not necessary to add all the trustees as defendants and it further held that the claim of the plaintiff could not be disallowed on the ground that the defendant No. 1 was a Trust and other trustees were necessary parties. The Trust-defendant No. 1 has filed this Second Appeal. Second Appeal was admitted by this Court by order dated 9-7-1990 and substantial question of law was raised in respect of ground Nos. 1 and 2. Ground Nos. 1 and 2 are reproduced herein below :
(1) Whether the lower Appellate Court is justified when it totally ignore the law of the Land? The Sections 50 & 51 of the Bombay Public Trust Act clearly states that prior permission of the Charity Commissioner is a must when suit is to be instituted against the Public Trust.
(2) Order 31, Rule 2 of the Civil Procedure Code categorically says that all the Trustees must be made parties in the suit instituted against the Trust. In the fact and circumstances of the present case admittedly Trustees were not made parties to the suit. Then, whether Lower Appellate Court is justified in reversing the findings of facts and law of the trial Court. ?
5. I have heard the learned counsel appearing on behalf of the appellant, and the learned counsel appearing on behalf of the respondents. Learned counsel appearing on behalf of the appellant has taken me through the judgment and order of the lower appellate Court as well as the trial Court and also the pleadings of the parties in support of his contention that, from the pleadings of the parties, it was apparent that the nature of the suit was such that the said suit was not maintainable under Sections 50 and 51 of the Bombay Public Trust Act and also by virtue of the provisions of Sections 79 and 80 of the Bombay Public Trust Act. He further submitted that even assuming that the suit was maintainable as per the provisions of Order 31, Rule 2 of the Code of Civil Procedure, all the trustees ought to have been added as necessary parties and under the circumstances both the lower appellate Courts were not justified in holding that the suit was maintainable in the absence of trustees being added as party-respondents. He submitted that the property of the Trust vested in the trustees and, therefore, even it otherwise without adding them as party respondents the suit would not have proceeded further. He relied on judgment of this Court reported in the case of Shrikrishna Annaji Sonatake, Appellant v. Ramnarayan Pannalal Lathi and Ors., Respondents, : AIR1982Bom487 , wherein the Court had held that all the trustees should before the Court when the question of liability of trust properties is involved. In this context, the Court had held that the appeal filed by the defendants was not maintainable without adding all the defendants as respondents. He also relied on a judgment of Full Bench of the Gujarat High Court, reported in the case of Atmaram Ranchhodbhai, Petitioner v. Gulamhusein Gulam Mohiyaddin and Anr., Respondents, : AIR1973Guj113 , wherein the Full Bench of Gujarat High Court had come to the conclusion that all the co-trustee must be joined as necessary parties in a suit for the recovery of possession of the property from the tenant. He further relied on judgment of this Court reported in the case of Nagar Wachan Mandir, Pandharpur v. Akbaralli Abdulhusen and Sons and Ors., 1994 Mh.L.J. 280. Finally, he relied on judgment of the Apex Court reported in the case of Virupakshayya Shankarayya, Appellant v. Neelakanta Shivacharya Pattadadevaru, Respondent, : [1995]2SCR820 . He further submitted that so far as the gift-deed is concerned, both the lower Courts had clearly erred in holding that the gift-deed was inadmissible. He submitted that he relied on the provisions of the Transfer of Property Act and held that though the document was termed as a gift-deed the contents of the documents clearly showed that there was consideration mentioned in the said gift-deed and Rs. 99/- was paid as consideration. He stated that the definition of the gift-deed as contemplated under the Transfer of Property Act envisaged a transfer without consideration. He submitted that, therefore, the provisions of Section 123 of the Transfer of Property Act would not be applicable. He further submitted that since the valuation of the document was below Rs. 100/- it was not necessary to register the said document and, therefore, both the Courts ought to have held that the said document is admissible in evidence.
6. Learned counsel appearing on behalf of the original plaintiff has submitted that from the perusal of Sections 50 and 51 of the Bombay Public Trust Act, permission of the Charity Commissioner was required to be obtained only in respect of cases incorporated in (i) to (iv) and the instances which were given thereafter in (a) to (d) were illustrations which cover categorically of cases under (i) to (iv) of Section 50 of the Act. He submitted that therefore the facts of the present case are such that they did not fall within the ambit of Section 50 or 51 of the Act. He further submitted that so far as Section 79 of Bombay Public Trust Act was concerned, the authorities described in Section 79 of the Act were required to decide the question in respect of inter se dispute between the trustees and not in respect of the dispute which would ordinarily required to be decided by a civil Court. He submitted that Section 80 of the Bombay Public Trust Act therefore also would not apply to such cases which were expressly required to be decided by the civil Court. In support of his submission, he relied on judgment of this Court reported in the case of Vidarbha Kshatriya Mali Shikshan Sanstha, by its President Shri Wasudeorao Dattaji Sonar v. Mahatma Fuley Shikshan Samiti, Amravati through its President Ruprao Bhimrao Yawale, 1986 Mh.L.J. 773. He submitted that so far as the Bombay Public Trust Act is concerned. Section 2 (4) had defined a 'Court' means the City Civil Court and elsewhere, the District Court. He further submitted that the concurrent findings of both the Courts in respect of the gift-deed cannot be interfered with by this Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure.
7. In order to appreciate the rival contentions, it would be necessary to take into consideration the relevant provisions of the Bombay Public Trust Act before deciding the question, as to whether permission of the Charity Commissioner was required before filing the suit, and secondly before coming to a conclusion, whether the suit was maintainable before the civil Court or not. Section 50 of the Bombay Public Trust Act reads as follows :
50. In any case--
(i) where it is alleged that there is a breach of a public trust, negligence, misapplication 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, alienee, 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 Sub-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, misapplication, 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 cypres 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 an 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.
Clauses (i) to (iv) enumerate various categories of cases which would come within the ambit of Section 50 of the Bombay Public Trust Act, 1950. Clause (i) is admittedly would not be applicable to the facts of the present case because it is in respect of a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees, Clause (ii) deals with the recovery of a property belonging or alleged to be belonging to a public trust from a trustee, ex-trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee. The present suit is filed by the plaintiff who is seeking to recover the possession of the property of which he claimed to be an owner by virtue of a registered sale deed and, therefore, in my view, Clause (ii) would also not applicable. The suit contemplated in Clause (ii), in my view, would be a suit which is filed for the recovery of the property by the trust from a trustee or any other person. Clause (iii) also is not admittedly applicable. Clause (iv) contemplates a case where the declaration or injunction is sought in favour of or against a public trust or trustee. The subsequent portion of the said section clarifies that only in such cases as enumerated in Sub-clauses (i) to (iii), the Charity Commissioner can file a suit after making an enquiry as stated in Clauses (i) to (iii) and in respect of Sub-clause (iv), after the consent in writing of the Charity Commissioner, is obtained the suit could be filed. The said section thereafter enumerates the various reliefs which can be asked for from the Court. Clauses (a) to (q) lay down the reliefs which can be sought in such a suit. The said question was considered by this Court in the case of Vidarbha Kshatriya Mali Shikshan Sanstha v. Mahatma Fuley Shikshan Samiti, Amravati, 1986 Mh.L.J. 773 (supra) where this Court had an occasion to consider the scope of Section 50. In the said case the suit was filed by one trust against another trust for enforcement of its civil rights. This Court came to the conclusion that the said suit was not barred on the ground of want of permission from the Charity Commissioner and it was not required to be filed in the Court as defined under Section 2(4) of the Bombay Public Trust Act but the said suit would lie before the ordinary forum. In the said suit after the suit was filed an application was made under Section 9-A of the Code of Civil Procedure for framing a preliminary issue regarding the jurisdiction of the Court and the maintainability of the suit. The said issue was framed and the trial Court held that the suit was maintainable and hence a revision was filed in the High Court. This Court in the said judgment held that if a suit is tiled by a plaintiff for enforcing his own civil rights, then it is not barred by Section 50 of the Bombay Public Trust Act, In my view, the ratio of the said judgment would be squarely applicable to the facts of the present case. The plaintiff had filed a suit for the enforcement of his own civil rights. It was his specific contention that he had purchased the property by registered sale deed from defendant No. 2 and, therefore, he was claiming possession of the said property. In my view, therefore, the submission made by the learned counsel appearing on behalf of the appellant that the permission of the Charity Commissioner not having been obtained, suit is not maintainable, cannot be accepted.
8. The second submission of the learned counsel appearing on behalf of the appellant is that under Order 31, Rule 2 of the Code of Civil Procedure all the trustees have to be made as party respondents. Order 31, Rules 1 and 2 of the Civil Procedure Code reads as under :
1. Representation of beneficiaries in suits concerning property vested in trustees, etc.-- In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.
2. Joinder of trustees, executors and administrators.--Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them :
From the perusal of the said rules, it is clear that the suit which are referred in Rule 1 are regarding the representation of beneficiaries in suits concerning property vested in trustees. The said rule itself makes it very clear that where the contest is between the persons beneficially interested in such property and a third person, it is not necessary to make them parties unless the Court specifically orders them to be made parties. Rule 2 is in respect of a suit which is filed by one trustee against another or by an executors or administrators against the trustees, Thus, in my view, the said submission of the appellant that if trustees are not made parties, the suit is not maintainable; cannot be accepted.
9. Learned counsel appearing on behalf of the appellant relied on judgment of this Court, in support of the said submission reported in the case of Nagar Wachan Mandir, Pandharpur v. Akbaralli Abdulhusen and Sons and Ors., 1994 Mh.L.J. 280 (supra), wherein this Court had held that there could not be delegation by a trustee nor there could be a determination of a lease and such power could not be delegated by one trustee to another co-trustee and that all the co-trustee were bound to exercise their judgment in the matter and in this view of the matter, the Court came to the conclusion that the suit was not maintainable. In support, this Court had relied on Full Bench judgment of the Gujarat High Court reported in the case of Atmaram Ranchhodbhai, : AIR1973Guj113 (supra). In my view, the ratio of the said case would not be applicable to the facts of the present case. In the said case trust had filed the suit for possession on the ground of non payment of rent under the provisions of Bombay Rent Act. The trust was also Society registered as per the provisions of Societies Registration Act and was, therefore, registered under the provisions of Bombay Public Trust Act also. In the meeting held by the Management Committee on 28th May, 1961, a resolution was passed to lease out the suit property to defendant-firm for 16 years since 10th October, 1961 and the registered lease-deed was executed by the defendant in favour of the plaintiff. This lease deed was signed by the plaintiff Nos. 1 and 2 on behalf of the plaintiff-society and also by the deceased defendant No. 1 on behalf of the defendant-firm. On account of non payment of rent by the defendant, a Regular Civil Suit was filed which was compromised and compromise decree was passed. However, since in spite of the consent terms the agreed amount was not paid, a suit was filed for the recovery of the said amount. In the said suit the main contention raised by the defendant was that since all the trustees had not filed the suit, the suit was not maintainable. In this context, the Court came to the conclusion that the power or function to determine the lease is a matter which cannot be delegated by co-trustee to another co-trustee and, therefore, in such a situation, all the co-trustee were bound to exercise their judgment. The facts of the present case are entirely different. The plaintiff is seeking to enforce his own civil rights and, therefore, there is no question of delegation of any authority by one trustee to another and the public trust was itself was being made a defendant in the suit. In my view, therefore, the ratio of the judgment and the judgment reported in : AIR1973Guj113 would not be applicable to the facts of the present case.
10. Learned counsel appearing on behalf of the appellant also relied on judgment of the Apex Court reported in the case of Virupakshayya Shankarayya v. Neelakanta Shivacharya Pattadadevaru, : [1995]2SCR820 . In my view, the ratio of the said judgment would not be applicable to the facts of the present case, because the Apex Court, after considering the facts of that case, the Court had come to the conclusion that the said suit which was filed in the case before the Apex Court was hit by provisions of Section 50 and 51 of the Act.
11. Learned counsel appearing on behalf of the appellant has relied on judgment of this Court reported in the case of Shri Krishna Annaji Sonatake v. Ramnarayan Pannalal Lathi and Ors., : AIR1982Bom487 . In my view the facts of the said case are entirely different and ratio of the said judgment would not be applicable to the present facts. In the said case, a suit was filed impleading the Trust as the first defendant and defendant Nos. 2 to 11. A decree was passed only against the Trust. An appeal was preferred by some of the trustees without impleading the other defendant/co-trustees. In this context, the Court held that the appeal which was filed without adding the other co-defendants as respondents in the appeal, the appeal was not maintainable. The ratio of the said case is not applicable to the facts of the present case.
12. Learned counsel appearing on behalf of the appellant has submitted that he has also filed a civil application and he has submitted the changed circumstances should be brought on record. It is submitted that during the pendency of the second appeal, the application filed by the trust under Section 22 for including the property in Schedule-I was allowed by the Charity Commissioner and that the Charity Commissioner has placed the property in Schedule-1 and as a result it has become a trust property. The civil application is allowed and the change report is also brought on record. In my view, merely because the change report is accepted by the Charity Commissioner and a property is put in the schedule of the trust, the position would not change and a person claiming to have enforce his civil rights would still be entitled to file a suit in the Civil Court. In support of his submission, learned counsel appearing on behalf of the appellant has relied on judgment of this Court reported in the case of Mahibubi Abdul Aziz and Ors., v. Sayed Abdul Majid and Ors., : (2001)2BOMLR530 . In the said case, this Court had held that the Civil Court could not entertain a question of title on the assumption that it was complicated one, in view of the express bar under Section 80. In my view the ratio of the said judgment would not be applicable to the facts of the present case. In the present case, the plaintiff is seeking to enforce his own civil rights in respect of the property which he has purchased by virtue of a registered sale deed from the defendant No. 2. There is no document on record which establishes the title of the trust over the said property. The gift deed which is relied on by the trust is inadmissible in evidence. The jurisdiction, as contemplated under Section 80 would be in respect of cases which are required to be decided or dealt with by any officer under the Act. Section 80 of the Bombay Public Trust Act reads as follows :
'80. Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive.'
Section 80 of the Bombay Public Trust Act, therefore contemplates that whenever there is an inter se dispute, such dispute could be resolved by the internal machinery as provided under the Act. It obviously does not contemplate situation where a person is seeking to enforce his own civil rights. If such a interpretation is given to Section 80, even if, the authorities concerned, hold that a property belongs to the third person, the authority under the said Act would not be in position to execute such a decree. Section 80, therefore, does not contemplate such a situation. In my view, therefore, the ratio of the judgment in the case reported in 1986 Mh.L.J. 773 would be applicable to the facts of the present case and the ratio of the judgment reported in : (2001)2BOMLR530 would not be applicable.
13. The third submission of the learned counsel appearing on behalf of the appellant is that the gift-deed cannot be construed as a gift-deed, in view of the specific reference of consideration of Rs. 99/- which is mentioned in the said document. In my view, both the Courts have given the concurrent finding that the said document is a gift-deed. I do not see any reason to interfere with the said concurrent finding while exercising jurisdiction under Section 100 of the Code of Civil Procedure, even otherwise merely because an amount is mentioned in a document it cannot be construed in isolation as the contents of the documents have to be read as a whole! The market value of the property has not been reflected in the said document. The tenor of the document indicates that it is meant to be a gift, a stray sentence cannot be taken out of context and it cannot be submitted that in view of that sentence the said document is to be construed not as a gift-deed but as a sale deed. Even otherwise, if it is considered a sale deed, merely because the valuation is shown as below Rs. 100/- that, by itself would not make the document admissible. Obviously the valuation of the property was above Rs. 100/-. This submission, therefore, of the appellant, cannot be accepted. The provisions of Transfer of Property Act are very clear on this point. Section 122 of the Transfer of Property Act defines a 'gift'. Section 122 reads as follows :
122. 'Gift' defined :
'Gift' is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made - Such acceptance must be made during the lifetime the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.'
Section 123 of the Transfer of Property Act lays down the procedure in which the property can be transferred by as a 'gift' and it is necessary that the said document should be registered and it should be signed by the donor and attested by two witnesses. None of the requirements has been complied the said submission, therefore, cannot be accepted. In this view of the matter, there is no merit in the second appeal. Second Appeal is, therefore, dismissed. Under the circumstances, there shall be no order as to costs.