Matoshri Vithabai Marotrao Trust vs Ramkrushna Maroti Wankhede & Ors.

Heard finally with consent of learned counsel for the respective parties.

This is an application filed by the present a pplicant under Section 115 of the Code of Civil Procedure, 1908 (for short “CPC”), challenging the order dated 22.06.2022 passed below Exh.87 by the learned Civil Judge Senior Division, Pusad, District Yavatmal, in Regular Civil Suit No.147 of 2013 wherein, the application under Order VII Rule 11(d) of the CPC, for rejection of the plaint came to be rejected. The applicant has further contended that the Regular Civil Suit No.147 of 2013 filed by the non-applicant No.1/plaintiff, is not maintainable.

According to the applicant, the applicant-Trust is a registered Public Trust under the Maharashtra Public Trusts Act, 1950 (for short “the Act”). The Trust came to be constituted as one Vithabai Marotrao Patil Wankhede donated her agricultural land by executing a Registered Gift Deed dated 18.05.1978 bequeathing her property in the name of the Parampujya Vionobaji Bhawe and Rambhau Yashwant Maskar, by way of donation. In the said gift deed, the donor Vithabai Marotrao Patil Wankhede stated that her agricultural land should be utilised for the collective prayers, Bhagvat Geeta and construction of Krishna Mandir, Geetai Mandir, Guest House, etc. The said gift deed also expressed the need of formation of a Trust. Accordingly, the applicant-Trust came to be constituted and registered as Trust No. A-584, having its office at Yavatmal, District Yavatmal.

The non-applicant No.1 claiming to be the adopted son of Late Vithabai, had filed Regular Civil Suit No.147 of 2013 on 16.07.2013 seeking a declaration that the registered gift deed dated 18.05.1978 be declared null and void. He further prayed that the possession of the land should be handed over from the applicant-Trust to him. In addition, he also sought declaration that the use of the land should not be changed to residential purposes and further prayed for not to create any third party interest therein. He also prayed for permanent injunction to that effect. The suit property now belongs to the applicant-Trust’s and its name is duly recorded in 7/12 extract, revenue records as well as Schedule-I under the Act.

On 08.07.2021, the defendant No.3(D) Vasant Parashram Bijamwar, filed an application under Order VII Rule 11(d) of the CPC, seeking rejection of the plaint. The main ground of the said application was that as per the Section 17 and 18 of the Act, there is a bar prescribed by the Act, thereby, expressly providing that Civil Court shall not have jurisdiction to decide or deal with any question, which is to be decided with any Officer or Authority under the Act. The said defendant No.3(D) further claimed that if any person aggrieved with the functioning of the Trust, he is required to seek permission under Sections 50 and 51 of the Act, from the Assistant Charity Commissioner, before instituting a suit. He further submitted that as per Section 22(3A) and 22(3B) of the Act, the Charity Commissioner is empowered to decide the matters in the enquiry as regards cancellation of the registration certificate as well as the dispossession of the Trust property. However, vide order dated 22.06.2022, the learned Trial Court rejected the application preferred by the defendant No.3(D) for rejection of the plaint.

Being aggrieved by the said order, the applicant-Trust has approached this Court by filing the present civil revision application under Section 115 of the CPC.

According to Mr. Meghe, learned counsel for the applicant submitted that, admittedly, the suit property in question belongs to the applicant-Trust and that the same is recorded in the Schedule-I of the Act. He submitted that the non-applicant No.1/plaintiff, claiming to be the adopted son of the donor late Vithabai, has filed the suit for declaration seeking the registered gift deed dated 18.05.1978 be cancelled on the ground that the purpose for which it was executed has not been served. He further submitted that Section 50 of the Act, the provision in respect of the suits by or against or related to the Public Trusts, its Trustees or other persons, has been prescribed. Since, the non-applicant No.1/plaintiff in his plaint is alleging that there is a breach of trust, negligence, misapplication or misconduct on the part of the Public Trust. In such case, the Charity Commissioner is empowered to make an enquiry, the Charity Commissioner after making such an enquiry, if he thinks necessary, the suit under Sub-Clause (1) to (3) after obtaining the certain permissions from the Charity Commissioner as provided in Section 51 of the Act, may institute the suit before the Competent Court, within local limits of jurisdiction where the subject matter of the Trust is situated. Such a suit can be filed for obtaining the order of recovery of the possession of such property or proceed thereof.

He further relief upon Section 51 of the Act, to contend that if the person having interest in any Public Trust who intend to file a suit of the nature specified under Section 50 of the Act, then he shall apply in writing to the Charity Commissioner for obtaining his consent to institute the suit. The Charity Commissioner after hearing the parties and making such enquiry, may either grant or refuse his consent for the institution of such suit. Therefore, as the person who is having interest in the Trust’s property, is required to approach the Charity Commissioner for obtaining permission before instituting such suit. He therefore, submits that the impugned order passed by the learned Trial Court is patently illegal.

To buttress his submissions, he relied upon the judgment passed of this Court in the matter of Tasadduq Husain Qureshi and Another Vs. Asif Abdul Bashar Qureshi and Others reported in 2014(2) Mh.L.J. 132, to contend that where the averments in the plaint are revolving around the proper administration of the Public Trust, the persons who are interested in the said property are required to approach before the appropriate Forum and such case would fall within the ambit of the Act. Therefore, the Civil Courts jurisdiction is barred considering the provisions of Section 41 read with Section 50 of the Act.

He further relief upon the judgment passed by this Court in the matter of Second Appeal No.45 of 2018 Prashant Bahrgavram Bhopi Vs. Collector Yavatmal and Others decided on 12.02.2018, wherein it has been observed that the properties are the Trust properties and if any question with regard to the entitlement of the plaintiff to seek any right in that regard, this claim could be done only before the Authorities prescribed under the Act. The question as to the entitlement of plaintiff to seek any relief with regard to the Trust property, would be required to be decided by the Authorities under the Act.

Drawing support from the aforesaid judgment Mr. Meghe, learned counsel for the applicant submits that the aforesaid authorities are squarely applicable to the case in hand. He further submitted that to his prayer clause (a) of the plaint seeks cancellation of the registered Gift Deed dated 18.05.1978 executed by Vithabai by declaring the same to be null and void.

Per contra, Mr. Kasat, learned counsel for respondent No.1 strongly opposed the present application. He submitted that a Civil Court where the suit is filed shall have jurisdiction to try all the suits of a civil nature unless the suits of which the cognizance is expressly or impliedly barred by law. He further submitted that the plaintiff was legally adopted by Late Vithabai, on 14.02.1978. Thereafter, on 18.05.1978, the late Vithabai executed a Registered Gift Deed of the suit property in favour of Vinoba Bhave and Rambhau Mhaskar. According to him, the registered gift deed was a conditional one. It was executed with an aim and object that the Trust be registered for the administration of the suit property for the benefit of the society at large.

Accordingly, the applicant-Matoshri Vithabai Marotrao Trust came to be registered as a Trust bearing Registration No.1584-Yavatmal. On 15.02.2012, the plaintiff saw a notice at Tahsil Office where the objections were called for conversion of the suit property to the non-agricultural use. On 28.02.2012, the plaintiff raised an objection and the said proceedings are pending.

He therefore, contended that the purpose for which the suit property was gifted is getting frustrated, as the defendants are trying to convert the land for commercial use. He further alleged that the defendants are trying to convert the land for commercial use for their own huge profits. Therefore, he sought relief of cancellation of the registered Gift Deed dated 18.05.1978, for recovery of possession of suit property and perpetual injunction. He therefore, pointed out to this Court the definition of ‘a person having interest’ as defined under Section 2(10) of the Act, which reads as follows :-

He therefore, submitted that the provisions relied upon by Mr. Meghe, learned counsel for the applicant, are applicable only to a person having an interest in a property of Public Trust as contemplated under the Act. However, the plaintiff has challenged the disobedience of the terms of the registered Gift Deed and as the same are not followed in its true spirit. Therefore, the plaintiff has sought the cancellation of registered Gift Deed with all consequential reliefs and perpetual injunction. He submitted that the plaintiff has nowhere challenged that the functioning of the Trust in accordance with the object and constitution of the Trust. According to him, there are two different things i.e. firstly the object and purpose of the Registered Gift Deed and secondly, the object and purpose and constitution of the Registered Trust.

Mr. Kasat, learned counsel for respondent No.1 vehemently submitted that the present applicant is trying to mix the issue as the plaintiff is at all not concerned with the administration of the Trust. He further submitted that the plaintiff is not challenging that the applicant-Trust is not acting as per the interest of its beneficiaries and the said Trust is not functioning as per its objects provided in its constitution and therefore, he is not a person having interest as defined under Section 2(10) of the Act. He further submitted that the plaintiff is claiming multiple reliefs and it is a well settled law that a plaint cannot be rejected in part. He further submitted that the claim of challenging the registered Gift Deed is not barred by the provisions of law, as claimed by the applicant-Trust. Therefore, he prayed for rejection of the instant application.

It is well settled position of law that in order to decide an application under Order VII Rule 11 of the CPC, the Court is required to consider only the averments made by the plaintiff in the plaint and the documents filed along with the pleadings. Neither the defence nor the averments or the statements made by the defendant in the written statement are to be examined. The said provision provides an opportunity to defend the challenge to the suit on certain defects in order to save judicial time and the Court spending its time on vexatious litigation.

The main contention raised in the application under Order VII Rule 11 of CPC is that the Civil Court is not having jurisdiction to try the issues in the dispute. The provisions of the Act, prohibiting the Civil Court to try any dispute pertaining to the Public Trusts are concerned, it is prescribed that any person who is having interest in the Public Trust “having an interest in the public trust” who has intended to file any suit in the nature specified under Section 50 of the Act, is required to apply in writing to the Charity Commissioner for obtaining his consent. The Charity Commissioner may grant or refuse his consent to institute such suit. However, words appearing in these sections that the “a person having interest” are defined under Section 2(10) of the Act, which has already been reproduced hereinabove.

The said definition provides clauses (a) to (e). Clause (e) particularly describes person having interest “in the case of any other public trust, [any trustee or beneficiary]”. The plaintiff looking to the aforesaid provision cannot be said to be a person having interest in the said Public Trust. Thus, the provisions under Sections 50 and 51 of the Act, would be attracted where the person who is entitled to attend any Place of Worship, a Temple or Wakf property, member of the society registered under the Societies Registration Act, 1860, any trustee or beneficiary, etc.

All these categories have been specifically prescribed under the Act, to define the person having interest in the Trust’s property. The status of the present plaintiff, if seen, as averred in his plaint that he is an adopted son of the donor Late Vithabai. It is neither the case of the applicant-Trust, trustees or the plaintiff himself that he is a person who is challenging the objects and functioning of the Trust within the purview of the definition of a person having interest.

Thus, in my opinion that the “person having interest” term or a “person having interest of Trust”, having been specifically defined and the categories which are explained thereunder. The plaintiff i.e. non-applicant No.1 herein does not fall within the said definition and therefore, the plaintiff is entitled to institute the suit before the Civil Court seeking cancellation of the registered Gift Deed.

It is to be observe here that the plaintiff is challenging the registered Gift Deed for the disobedience and purpose of the Gift Deed. He has nowhere challenged that the Trust is not functioning in accordance with the objects and constitution. As pointed out by Mr. Kasat, learned counsel for respondent No.1, the object and purpose of the Registered Gift Deed and object and purpose of the Registered Trust are two different things. Naturally, the Trust will function as per the constitution within its framework of object, whereas, the operation of the registered Gift Deed will be governed by the terms and conditions, object and the purpose which are included in the registered Gift Deed.

It is not the case of the plaintiff to mean that he has challenged to one to be treated as challenge to another. The submissions of Mr. Meghe, learned counsel for the applicant cannot be be accepted. Had the plaintiff challenged that the Trust is not functioning as per its objects enunciated in the constitution. In that constitution the plaintiff would have come within purview of “a person having interest” as defined under Section 2(10) of the Act. Hence, I am unable to accept the submission made by the learned counsel for the applicant. That the plaintiff was required to seek permission from the Charity Commissioner to institute the suit as per Section 50 of the Act. Another submission of the learned counsel for the applicant is in respect of Section 80 of the Act, which is reproduced as follows :-

Under the aforesaid provision, it is provided that the question relating to whether the Trust is functioning and utilizing its property as per it is required to be decided by the Charity Commissioner and therefore, the jurisdiction of the Civil Court is barred. Again as discussed hereinabove, the plaintiff has not at all challenged the conduct of the Trust as to how it is managing the property and whether it is being managed as per the object of the Trust or not. Therefore, the provisions of Section 80 of the Act, shall not be applicable to the instant case. Again as regards, Section 22 of the Act, came to be canvassed before this Court, to contend that the dispute is to be decided by the Charity Commissioner and therefore, the jurisdiction of the Civil Court is impliedly barred. However, as discussed hereinabove, the provisions will not be applicable to the present suit.

In that view of the matter, it is clear that the plaintiff is seeking substantive relief of cancellation of the registered Gift Deed, along with the consequential relief of perpetual injunction. It is settled law that a plaint cannot be rejected in part, it has to be rejected in its entirety. Merely, because one of the prayer clause of consequential relief exceeded the jurisdiction of Civil Court, it cannot be said that the entire or partial claim of the plaint is itself rejected at its threshold.

In view of the aforesaid discussions, cancellation of the registered Gift Deed, does not appear to be barred by law and no ground is made out for rejection of plaint. Accordingly, the civil revision application deserves to be dismissed.

In that view of the matter, the Civil Revision Application is dismissed. No order as to costs.