Abaji Daulata Yadav, Since Deceased By ... vs Dhondiram Jagedevrao Yadav And Ors.

on 22
February, 1993
Equivalent citations: 1994(3)BOMCR60, (1993)95BOMLR810

JUDGMENT

P.S. Patankar, J.

1. There is one religious trust by name `Bhairav-Dev' situate at village Gulumb, Taluka Wai, District Satara. The appellants are
the beneficiaries thereof. The respondents 1 to 5, and 10 to 12 are the original trustees of the said trust. The said trust is
registered under the Bombay Public Trusts Act, 1950 (hereinafter referred to as `the Trust Act'). The trustees i.e. respondents 1
to 5 sold three survey numbers admeasuring about 81/2 acres to respondents 6 to 9. The said sales came to be challenged on
behalf of the appellants. The appellants sought consent under section 51 of the Trust Act and the Charity Commissioner granted
the same on 24-1-1969. The appellants therefore filed the suit in the District Court at Satara inter alia praying that the
properties which were sold to respondents 6 to 9 be recovered and the sales which are effected in their favour be declared as
invalid.

2. The respondent No. 4 died on 4-7-1973. He was a hereditary trustee. A change report was submitted by the other trustees
recommending the name of respondent No. 14 who was the son of respondent No. 4. On 12-10-1973, the Charity
Commissioner granted recognition to respondent No. 14. Thereafter on 2-4-74 the appellants filed an application to bring the
respondent No. 14 on record in the place of respondent No. 14. The said application came to be intially granted on 5-4-1974 by
the learned Judge and he was allowed to be joined as defendant. However, a contention came to be raised on behalf of the
respondent that the entire suit abated as there was failure on the part of the appellants to bring the legal representatives of the
deceased respondent No. 4 i.e. (defendant No. 4) on record within the prescribed period and the suit was not tenable in the
absence of the consent of the Charity Commissioner to add respondent No. 14 under the provisions of section 51 of the Trust
Act.

3. The learned Assistant Judge, Satara, framed two issues as preliminary. He came to the conclusion that it was necessary to
bring the legal representatives of the deceased respondent No. 4 (i.e. defendant No. 4) within 90 days of his death. The same
has not been done and, therefore, the entire suit abated. He also held that the suit filed by the appellants was not tenable against
the respondent No. 14 in the absence of the consent from the Charity Commissioner under section 51 of the Trust Act. Hence
the suit came to be dismissed. The said order passed by the learned Judge is under challenge in this Appeal.

4. The learned Advocate for the appellants submitted that the provisions of Order XXII, Rule 10 of the Civil Procedure Code
are attracted in the present case and not the Order XXII, Rule 3. He submitted that even in the case of a hereditary trustee, there
is no bringing on record the legal representatives of the deceased trustee. It is only substitution of a trustee who is recognised
by the Charity Commissioner. He, therefore, submitted that there can be no abatement merely because there was no substitution
done within the prescribed period within which the legal representatives are required to be brought on record under Order
XXII, Rule 3. The learned Advocate for the appellant further submitted that it was an error on the part of the learned Judge to
rely upon 49 Bombay Law Reporter page 428 and to come to the conclusion that fresh consent of the Charity Commissioner
was necessary to add respondent No. 14 to the suit.

5. The learned Advocate for the respondents supported the judgment and decree passed by the Court below and contended that
it was incumbent upon the appellant to bring on record the legal representatives of the deceased respondent No. 4 within the
prescribed time. The respondent No. 4 was a hereditary trustee and, therefore, any of his heirs could come on record and the
appellants have failed in it. It is alternatively submitted that the appellants ought to have atleast made an application to the
Charity Commissioner within the period of 90 days to bring the respondent No. 14 on record of the Trust. The same has also
not been done by the appellants and, therefore, the appellants now cannot contend that there is no abatement. It is further
submitted that the property of the trust vested in all the trustees jointly and the consent was granted by the Charity
Commissioner to file the suit against them. If one of the trustees expired, and a new trustee is to be brought on record, then it is
necessary to obtain fresh consent of the Charity Commissioner under section 51 for that purpose.

6. In view of the contentions raised, two points which arise for my consideration are -

(i) Whether the suit has abated because the provisions of Order 22, Rule 3 of the C.P.C. are attracted or whether
provisions of Order 22, Rule 10 are attracted ?

(ii) Whether the consent of the Charity Commissioner was necessary under section 51 of the Trust Act for adding the
respondent No. 14 as a party ?

7. It will be necessary first to consider the nature of the hereditary trustee. While dealing with the constitutional challenge to
the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966, the Apex Court was called upon
to consider the nature of office of hereditary trustee. The said judgment is , Kakinada Anandana Samajam etc. v. Commr. of
Hindu Religious & Charitable Endowments, Hyderabad & others. The constitutional challenge was whether the office of the
hereditary trustee is property within the meaning of Article 19(1)(f) of the Constitution of India or not. The Apex Court
examined the general position of hereditary trustee and observed that the hereditary trustees of the institutions generally have
only a bare right to manage or administer the secular estate of the institution or the endowment and they do not have any
proprietory or beneficial interest either in the corpus or in the usufruct of the estate. It was also observed that the hereditary
trustee succeeds to the office as of right and in accordance with the rules governing succession. In the case of hereditary
trustee, the office devolves on the trustee according to the rule of succession laid down by the founder or according to usage or
custom applicable to the institution or trust. The phrase `trustee' is defined in section 2(18) of the Trust Act as follows :-

" 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;"

This makes no distinction between an `ordinary trustee' and a `hereditary trustee'. No trustee can be said to be owner of the
property in the real sense of the term. The legal ownership which vests in the trustees is for the purpose of the trust or for
beneficial enjoyment by others and for administration of the provisions of the trust. Thus, it is clear that the property of trust
vests in the trustees in a limited sense and to be managed for subserving the objects of the trust. This would make the rights and
obligations of `ordinary trustee' and `hereditary trustee' as same. Therefore, only difference in respect of the ordinary trustee
and the hereditary trustee can be said to be in the method or mode of appointment. Even the hereditary trustee is required to be
recognised by the office of the Charity Commissioner and necessary entries are required to be made in the trust register
maintained under section 17 in that respect and any change of trustee to be recorded in view of section 22. Therefore, I reject
the contention raised on behalf of the respondents that there is a difference between the ordinary trustee and a hereditary
trustee.

8. Now the next question to be decided is whether the provisions of Order XXII, Rule 10 of the C.P.C. are attracted or Order
XXII, Rule 3. The learned Advocate for the appellants relied upon , Sitabai Ramchandra Jaltare & others v. Masjid Nurun
Mohalla Jingerwadi. The facts relevant for considering the point involved in this Appeal are as follows:

At Akot in District Akola, there is a mosque known as "Masjid Nuran" which owns certain immoveable property which
was dedicated to it. One Awaliyabai was Mutawalli. She filed a suit for possession of a piece of land. The suit came to be
dismissed. Awaliyabai filed appeal. During the pendency of the appeal, the trust was registered, but Awaliyabai died on
24-5-1958. Later on, on 30-4-1965, one Abdul Majid filed an application for substitution and for proceeding with the
appeal. This came to be resisted on behalf of the respondent on the ground that the application made by Abdul Majid for
leave to proceed with the appeal was not tenable in view of the fact that the legal representatives of Awaliyabai should
have applied for being brought on record within 90 days of the death of the said Awaliyabai. As this has not been done,
the right to sue did not survive and the appeal abated. The learned District Judge was of the view that the case was
governed by Rule 3 of Order XXII and not by the Rule 10 of Order XXII of the C.P.C. and since the application was not
made by the legal representatives of Awaliyabai for being brought on record within time, the appeal abated. The learned
Single Judge of this Court confirmed this view. However, the Division Bench in Letters Patent Appeal held that "It would,
therefore, appear that it is well settled that Order 22, Rule 3 of the Code applies to cases where the plaintiff leaves behind
the estate which could be inherited by his heirs or successors and if they are brought on record, then the provisions of
Order 22, Rule 3 will apply. However, the case would be different where the suit is brought by the plaintiff not in his
personal capacity but in his representative capacity as a trustee or otherwise. In that case when he dies, his own legal
representatives would not automatically become trustees and would not be legal representatives within the meaning of
Clause (11) of section 2 of the Code. Only those trustees who are elected or appointed under the scheme of the trust can
step in his shoes and continue the suit. Such a new trustee could not by any stretch of imagination be said to be legal
representatives of the deceased trustee. In any case, the right of the deceased plaintiff to act as a trustee would not pass on
to the new trustee on the death of the deceased trustee. The new trustee would get his right not by virtue of death of the
previous trustee but because of his being elected or appointed as a trustee under the scheme of the trust... Now obviously
such a case will not be covered by Order 22, Rule 3, which contemplated the legal representatives of the deceased
plaintiff being brought on record. Since the new trustee would not be a legal representative of the deceased trustee, in that
sense there is no question of the new trustee applying for being brought on record under the provisions of Order 22, Rule
3 of the Code. Obviously such a case would be covered by Rule 10 of Order 22 of the Code." It was further held that
unlike Rule 3 of Order 22, no limitation is prescribed for presentation of application under Rule 10 and no penalty is laid
down for failure to substittute the person on whom the interest of the deceased plaintiff or defendant devolves and hence
the right to make an application under the latter rule is right which accrues from day to day and can be made at any time
during the pendency of the suit and there is no abatement under that rule. Considering the ratio of this judgment, it is
clear that in the present case, the provisions of Order XXII, Rule 10 shall be attracted and, therefore, even though
application was made for substitution after 9 months (though the learned Judge wrongly observed as one year and 3
months), there can be no abatement. It is not the case where the legal representatives of the deceased respondent No. 4 are
to be brought on record but the trustee who is recognised by the Charity Commissioner is to be brought on record. This
would happen not only in the case of death but even in the case of retirement or resignation of the trustee. In all these
cases, substitution is required to be made and which can only be made under Order XXII, Rule 10. Hence, in my opinion,
the learned Judge was not right in holding that the suit abated. It is also not possible to accept the contention raised on
behalf of the respondents that at least an application should have been made to the Charity Commissioner within the
 prescribed time to bring respondent No. 14 on record and as the same has not been done, the suit abated. If the provisions
of Order XXII, Rule 10 are attracted, then there is no question of bringing respondent No. 14 on record of the Charity
Commissioner. For recording change there is strictly no limitation. After the change report is submitted, in the case of
hereditary trustee, the Charity Commissioner has first to recognise the said trustee who might have been chosen by all
other heirs of the deceased to represent the trust or as per provisions of trust deed or custom. The heir or heirs of
hereditary trustee do not take his place on his demise.

9. The next point for my consideration is whether the consent of the Charity Commissioner under section 51 of the Trust Act to
add the respondent No. 14 was necessary. The Court below has relied upon 49 Bombay Law Reporter page 428, Jessingbhai
Jagjivandas v. Jivatlal Pratapsi, and held that the same was necessary and as it was not obtained, the suit was not tenable. The
facts of that case were as follows :

The sanction of the Advocate General under section 92 of the C.P.C. was obtained to file against 4 defendants - trustees.
The suit came to be filed accordingly. However, 5th defendant came to be added without leave from the Advocate
General. The suit came to be amended by introducing the said new party. Thus there was addition of new defendant
without sanction. In those facts it came to be held that if the suit is amended by introduction of new party or in some other
quite substantial manner, the suit is not identical with the suit which it was at its commencement. It came to be held that
the Advocate General might not have granted sanction to file the suit against the 5th defendant and the amendment had
necessarily enlarged the scope of the suit. In view of this, it was held that the suit was not maintainable in the absence of
the fresh consent from the Advocate General. In my opinion, the ratio of the said judgment is not at all attracted to the
facts of the present case. In the present case, there is no such addition of the defendant. There is only substitution in the
place of the deceased trustee. The same is also clearly done after the necessary recognition came to be granted by the
Charity Commissioner when the change report was submitted to him. Further, there is no question of addition of a new
party or amending the suit in any substantial manner. It cannot be said that the scope of the suit is enlarged because of the
substitution. The suit remains the same. The Charity Commissioner has originally granted permission to the appellants to
challenge the sale deeds which came to be effected in favour of the respondents 6 to 9 and to recover possession in case
the same are held invalid. The scope of the suit, therefore, remains the same. Therefore, it was not necessary to obtain
fresh consent for substituting respondent No. 14 in the place of respondent No. 4. It cannot be said that in the absence of
fresh consent from the Charity Commissioner to sue respondent No. 14, the suit was maintainable. There can be no
misjoinder of parties or causes of action as observed by the learned Judge. The cause against respondent No. 14 arose
because he came to be recognised by the Charity Commissioner as a trustee in the place of original respondent No. 4 and,
therefore, for adding him to the suit, no fresh consent was necessary.

10. In the result, I pass the following order :---

The impugned judgment and order dated 11th December, 1974 passed by the Assistant Judge, Satara, in Civil Suit No. 3 of
1969 is set aside. The Appeal is allowed. The suit is remanded to the trial Court for decision as regards the other issues. In the
facts and circumstances of the case, there shall be no order as to costs.