Holding

Section 88B exemption does not apply retrospectively; registration of a public trust is prospective, so tenants' rights under Section 32 accrued on Tillers' Day remain and the exemption certificate is invalid.

Summary

The dispute concerned six acres of land belonging to the Maruti Dev Temple, which had been let out to tenants who, on Tillers' Day (1 April 1957), became deemed purchasers under Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. The temple trust was registered as a public trust under the Bombay Public Trusts Act on 8 August 1984, and an exemption certificate under Section 88B of the 1948 Act was issued in 1987, claiming the land was exempt from vesting provisions. The tenants challenged the certificate, and the Bombay High Court quashed it, holding that the trust’s later registration could not divest the tenants' rights accrued on Tillers' Day. On appeal, the Supreme Court examined whether Section 88B’s exemption applies retrospectively and whether a trust’s registration can be deemed to have existed before 1957. The Court held that registration under the Public Trusts Act is prospective; therefore, the exemption does not apply to land where tenants had already become owners, and the exemption certificate is invalid. Consequently, the High Court’s decision was affirmed and the appeal dismissed.

Issues considered

Whether Section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948 exempts land of a public religious trust when the trust was registered after Tillers' Day.
Whether the phrase ‘deemed to be registered’ in Section 88B can be read to give retrospective effect to a trust’s registration under the Bombay Public Trusts Act.
Whether the rights of tenants accrued under Section 32 on Tillers' Day can be divested by subsequent registration of the trust.
How the definition of ‘public trust’ and the concept of constructive trust affect the applicability of Section 88B.

Legislation cited

Benami Transactions (Prohibitions) Act, 1988
Bombay Public Trusts Act, 1950s. 2(13), s. 28
Bombay Tenancy and Agricultural Lands Act, 1948s. 32, s. 32G, s. 88B
Code of Civil Procedure, 1908s. 151
Indian Trusts Act, 1882s. 88, s. 90, s. 94

Subjects

Section 88BSection 32Tillers' Daypublic trustexemption certificateconstructive trustregistration prospectiveland vesting

Judgment

390 [2019]
SUPREME COURT 13 S.C.R. 390
REPORTS [2019] 13 S.C.R.

A JANARDAN DAGDU KHOMANE AND ANOTHER
v.
EKNATH BHIKU YADAV & ORS.
(Civil Appeal No. 2607 of 2013)
B SEPTEMBER 18, 2019
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Bombay Tenancy and Agricultural Lands Act, 1948: ss. 88B
and 32 – Exemption from certain provisions to land of local
authorities, universities and trusts – On facts, land belonging to
C
the temple let out to respondents – On 1.04.1957, Tillers’ Day the
respondents-tenants in possession of the land became deemed
purchasers – On 08.08.1984, the temple trust was registered after
necessary inquiry – Thereafter, issuance of Exemption Certificate
by the Collector in terms of s. 88B in favour of the Trust,
D notwithstanding the fact that the property belonged to “an institution
of public religious worship” – Writ petition challenging the
Exemption Certificate – Quashed by the High Court – On appeal,
held: Section 88 B exempts the land being the property of a Trust,
for inter alia public religious worship and/or educational and/or
social purpose from the vesting provisions – Trust, being a public
E
trust, was rightly registered on 8.8.1984, after due enquiry –
Registration is prospective, w.e.f. 8.8.1984 – Respondents became
deemed purchasers on Tillers’ Day-1.4.1957 – Right u/s. 32 accrued
to the respondents on that day and it cannot be divested of such
right upon subsequent registration of the Trust – Judgment passed
F by the High Court upheld.
Dismissing the appeal, the Court
HELD : 1.1 Section 88B of the Bombay Tenancy and
Agricultural Lands Act, 1948 provides for exemption of land being
the property of a Trust, for inter alia public religious worship and/
G or educational and/or social purpose from the vesting provisions.
[Para 23] [399-F]
1.2 The Bombay Public Trusts Act is intended to regulate
the administration of public religious and charitable trusts in the

H
390
JANARDAN DAGDU KHOMANE v. EKNATH BHIKU YADAV 391

erstwhile State of Bombay, now the States of Maharashtra and A
Gujarat, creates for the first time a unified special organization to
deal with charity matters. Trusts, long in existence, came to be
regulated by the Public Trusts Act. The Mahants, pujaris etc.
who administer properties of the deity as trustees, were brought
within the ambit of the Public Trusts Act. [Para 28–30] [400-E-H;
B
401-A]
1.3 In view of the definition of ‘Public Trust’ in the Public
Trusts Act, which also includes constructive trust either for a
public religious or charitable purpose, the absence of a deed of
trust would not make any difference to the position of the Trust
as a “public trust”. [Para 32] [401-C-D] C

1.4 A constructive trust arises by operation of law, without
regard to the intention of the parties to create a trust. It does not
require a deed signifying the institution of trust. Under a
constructive trust, the trust arises by operation of law as from
the date of the circumstances which give rise to it. The function D
of the court is only to declare that such a trust has arisen in the
past. Constructive trust can arise over a wide range of situations.
[Para 33–34] [401-E-F]
1.5 Section 90 of the Trusts Act states that if there is a
person in a fiduciary relation to another, he cannot take advantage E
of that position so as to gain something exclusively for himself,
which he otherwise would not have obtained, but for the position
which he held. Section 94 of the Trusts Act, 1882 has allowed the
creation of a constructive trust when situations went beyond the
confines of the Act. Section 94 has later been repealed by the F
Benami Transactions Prohibitions Act, 1988. The repeal of
Section 94 of the Act does not put any fetter in declaring a trust,
even if the situation falls outside the purview of the Act. Its
jurisdiction can be derived from Section 151 of CPC and Section
88 of the Indian Trusts Act. [Para 36, 37, 39] [402-E-F; 403-B]
G
1.6 There can be no doubt that the Trust was all along a
public trust within the meaning of Section 2(13) of the Bombay
Public Trusts Act. The Trust has rightly been registered under
the Public Trusts Act, after due enquiry. However, all public trusts
are not entitled, as of right, to the exemption under Section 88B
H
392 SUPREME COURT REPORTS [2019] 13 S.C.R.

A of the 1948 Act. The said section only applies to lands which are
property of a trust inter alia for educational purpose or for public
religious purpose provided such trust is deemed to be registered
or is registered under the Public Trusts Act. Only those Trusts
which were registered under the enactments specified in
Schedule A and Schedule AA are to be deemed to have been
B
registered under the Public Trusts Act. There is no other
provision in the Public Trusts Act with regard to deemed
registration. If it were the intention of the legislature that all public
trusts should be deemed to have been registered under the State
Public Trusts Act, the legislature would have made an express
C provision to that effect. It is not for the Court to read into statute
words and/or expressions which are not there in the statute. [Para
40, 42, 43] [403-C-D; 404-C-E]
1.7 The Trust, being a public trust, has rightly been
registered on 8.8.1984, after due enquiry. The registration of the
D Trust under the Public Trusts Act cannot be questioned. However,
the registration is prospective, w.e.f. 8.8.1984. The respondents
became deemed purchasers on Tillers’ Day, that is, 1.4.1957.
The right under Section 32 of the 1948 Act accrued to the
respondents on that day. The respondents cannot be divested of
such right upon subsequent registration of the Trust. It may be
E true that a Trust for a religious purpose has the right to own and
acquire property. However, such property may be taken away by
authority of law. The validity of Section 32 of the Public Trusts
Act is not in question. The judgment and order passed by the
High Court is upheld [Para 47, 48] [405-D-E]
F Laxminarayan Temple v. L. M. Chandore AIR 1970 Bom
23 ; Chhatrapati Charitable Devasthan Trust v. Parisa
Appa Bhoske and others 1979 Mh.L.J. 163 ; Gopal L.
Raheja v. Vijay B. Raheja 2007 (4) Bom CR 288
– referred to.
G Mahant Ramswarup Guru Chhote Balakdas v. Motiram
Khandu Patil and Others AIR 1968 SC 422 : [1968]
SCR 641 – distinguished.

H
JANARDAN DAGDU KHOMANE v. EKNATH BHIKU YADAV 393

Case Law Reference A
AIR 1970 Bom 23 referred to Para 20
1979 Mh.L.J.163 referred to Para 20
2007 (4) Bom CR 288 referred to Para 38
[1968] SCR 641 distinguished Para 44 B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2607
of 2013.
From the Judgment and Order dated 06.02.2006 of the High Court
of Judicature of Bombay in Writ Petition No. 1442 of 1987.
C
Ms. Bina Madhvan, S. Udaya Kumar Sagar, Ms. Swati Bhardwaj,
Ms. Shreyasi Kunwar, Ms. Elizabeth Anthony, M/s. Lawyer S Knit &
Co, Advs. for the Appellants.
Ravindra Keshavrao Adsure, Sagar N.Patil, Advs. for the
Respondents. D
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. This appeal is against a final judgment and order dated 6th
February, 2006, whereby a Division Bench of Bombay High Court allowed E
Writ Petition No.1442 of 1987 filed by the Respondent Nos.1,2 and 3,
and directed the concerned authorities to hold proceedings under Section
32(G) of the Bombay Tenancy and Agricultural Lands Act, 1948
[hereinafter referred to as “the 1948 Act” to fix the purchase price of 6
acres and 19 gunthas of lands at Pimpli Village in the Baramati Taluk in
Pune district, hereinafter referred to as the “said land”. F
2. The appellants are the trustees of Shree Maruti Deo Trust
Pimpli Limtek, registered as a public trust under the Bombay Public
Trusts Act, 1950, hereinafter referred to as the “Public Trusts Act”. By
amendment in 2012, the Public Trusts Act was renamed as “The
Maharashtra Public Trusts Act, 1950”. It is the case of the appellants G
that, since time immemorial, the said land has belonged to the Maruti
Dev Temple. The said land is classified in the revenue records as Class
III Devasthan Inam land belonging to the deity Maruti Dev. The suit
property, according to the appellants, belongs to an institution of public
religious worship.
H
394 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 3. There cannot be any dispute that the suit land belonged to the
Devasthan. According to the appellants, initially in 1922, one Sitram
Narayan Deshpande was put in possession of the suit land in view of the
service rendered by him to the temple. Later, the land was let out to the
forefathers of respondent nos. 1 to 4.
B 4. The respondent nos. 1 to 4, claim to be the tenants of the
respondent nos. 5 and 6. The respondent nos. 1 to 4 claim to have been
in possession of the said land on 1.4.1957 i.e. the “Tillers Day” under the
1948 Act, now known as the Maharashtra Tenancy and Agricultural
Lands Act. The proforma respondents in this appeal, being the trustees
of the Trust, were deleted from the array of parties by an order of this
C Court dated 13.2.2013.
5. The 1948 Act was amended by Bombay Act No. 15 of 1957,
Bombay Act No. 38 of 1957 and Bombay Act No. 63 of 1958. The
relevant amended sections provide:

D “32. Tenants deemed to have purchased land on tillers’ day
(1) On the first day of April 1957 (hereinafter referred to as “the
tillers day”) every tenant shall, [subject to the other provisions of
this section and the provisions of] the next succeeding sections,
be deemed to have purchased from his landlord, free of all
E encumbrances subsisting thereon on the said day, the land held by
him as tenant, if:-
(a) such tenant is a permanent tenant thereof and cultivates land
personally;
(b) such tenant is not a permanent tenant but cultivates land leased
F personally; and
(i) the landlord has not given notice of termination of his tenancy
under section 31; or
(ii) notice has been given under section 31, but the landlord has
not applied to the Mamlatdar on or before the 31st day of March
G 1957 under section 29 for obtaining possession of the land; or
(iii) the landlord has not terminated his tenancy on any of the
grounds specified in section 14, or has so terminated the tenancy
but has not applied to the Mamlatdar on or before the 31st day of
March, 1957 under section 29 for obtaining possession of the lands:
H
JANARDAN DAGDU KHOMANE v. EKNATH BHIKU YADAV 395
[INDIRA BANERJEE, J.]

32G. Tribunal to issue notices and determine price of land to be A
paid by tenants. (1) As soon as may be after the tillers’ day the
Tribunal shall publish or cause to be published a public notice in
the prescribed form in each village within its jurisdiction calling
upon:-
(a) all tenants who under section 32 are deemed to have B
purchased the lands,
(b) all landlords of such lands, and
(c) all other possession interested therein,
to appear it on the date specified in the notice. The tribunal shall C
issue a notice individually to each such tenant, landlord and also,
as far as practicable, other persons calling upon each other to
appear before it on the date specified in the public notice.
(2) The Tribunal shall record in the prescribed manner the
statementof the tenant whether he is or is not willing to purchase D
the land held by him as tenant
(3) Where any tenant fails to appear or makes a statement that
he is not willing to purchase the land, the Tribunal shall by an
order in writing declare that such tenant is not willing to purchase
the land and that the purchase is ineffective:
E
Provided that, if such order is passed in default of the appearance
of any party, the Tribunal shall communicate such order to the
parties and any party on whose default the order was passed may
within 60 days from the date on which the order was
communicated to him apply for the review of the same.
F
(4) If a tenant is willing to purchase, the Tribunal shall, after
giving an opportunity to the tenant and the landlord and all other
persons interested in such land to be heard and after holding an
inquiry, determine the purchase price of such land in accordance
with the provisions of section 32H and of sub-section (3) of section
63A: G

Provided that, where the purchase price in accordance with the
provisions of section 32H is mutually agreed upon by the landlord
and the tenant, the Tribunal after satisfying itself in such manner
as may be prescribed that the tenants consent to the agreement is
H
396 SUPREME COURT REPORTS [2019] 13 S.C.R.

A voluntary may make an order determining the purchase price and
providing for its payment in accordance with such agreement.
(5) In the case of a tenant who is deemed to have purchased the
land on the postponed date the Tribunal shall, as soon as may be,
after such date determine the price of the land”.
B 6. It is the case of the appellants, that Section 88B, inserted by
amendment in the 1948 Act by Bombay Act No.38 of 1957, exempts
land which is the property of a trust for, inter alia, educational purposes
or an institution for public religious worship, from certain provisions of
the 1948 Act including Section 32 and sub-Sections 32A to 32 R of the
C said Act, provided that such trust is or is deemed to be registered under
the Public Trusts Act, and the entire income of such lands is appropriated
for the purposes of such Trust.
7. The appellants contend that Section 32 has no application to
land held by a Public Trust. Therefore, a tenant on land held by a Public
D Trust does not become purchaser either on “Tillers day” or on any
subsequent date. Counsel appearing on behalf of the appellants has
emphatically argued that the Maruti Dev Temple Devasthan has, all
along been a Public Trust.
8. On 18.9.1983, the Gram Sabha decided to get the Trust
E registered as a Public Trust. Accordingly, an application no. 1484/83
was filed before the Deputy Charity Commissioner by one of the trustees,
for registration of Shri Maruti Dev Trust, Pimpli, Limtek, under Section
19 of the Public Trusts Act. On 8.8.1984, the Trust came to be registered
under PTR No. A/1656 (Pune) after necessary enquiry.

F 9. Questioning the registration of the Trust, the respondent no.1,
father of the respondent nos. 2 to 4, filed a Revisional Application No.
21 of 1985 before the Joint Charity Commissioner, Pune, who remanded
the matter back to the Deputy Charity Commissioner, on the ground that
no personal notice had been given to the concerned respondents.
10. On or about 9.7.1986, after registration of the Trust, the Trustee
G
in Charge of the Trust, filed an application under Rule 52(1) of the Bombay
Tenancy and Agriculture Land Rules, 1956 before the Collector for
exemption of the said land under Section 88B of the 1948 Act. It appears
that the Pune Archives recorded the land in question as Class III
Devasthan Inam Land of the Village Pimpli, belonging to the Maruti
H
JANARDAN DAGDU KHOMANE v. EKNATH BHIKU YADAV 397
[INDIRA BANERJEE, J.]

Dev Trust, managed by Shri Narayan Deshpande, as per decision no. A
196 dated 3.7.1858.
11. The Additional Collector, after holding enquiry under Section
88B (2) of the 1948 Act, issued a certificate dated 21.1.1987, certifying
that the Trust is “an institution of public religious worship registered under
the Bombay Public Trust Act”. The certificate further certified that the B
Trust was eligible for exemption under Section 88B of the 1948 Act in
respect of the land in question. The appellants assert that the certificate
was issued after notice of inquiry to the respondents who were given
the opportunity of cross-examining the Trustees.
12. On or about 13.3.1987, the respondent no.1 and father of C
respondent nos. 2 to 4, filed the above-mentioned writ petition being
WP No. 1442 of 1987 in the Bombay High Court, challenging the validity
of the exemption certificate.
13. Sometime in 1997, the respondent no.2 filed an Inquiry
Application No. 2008 of 1997 for registration of a Trust consisting of D
new Trustees in the name of Shri Maruti Dev Trust.
14. The appellants contend that the Inquiry Application was
misconceived and not maintainable since the respondent nos. 1 to 4,
who claim to be the tenants in the suit property, could not seek registration
of the Trust, as such a claim would be contrary to and inconsistent with E
their earlier claim of tenancy.
15. The Deputy Charity Commissioner, after considering the
allegations and counter allegations of the respective parties in the Inquiry
Application No. 1484 of 1983 and 2008 of 1997, passed an order dated
15.9.2001 holding that Maruti Dev Trust was already in existence and it F
was a Public Trust under the Public Trusts Act. Accordingly, Application
no. 2008 of 1997, filed by the respondent was rejected. The Application
No. 1484/1983 stood allowed.
16. Aggrieved by the order dated 15.9.2001, the respondent no.
1, father of respondent nos. 2 to 4, filed an Appeal No. 101/2001 before
G
the Joint Charity Commissioner, Pune. The appeal was dismissed by
the Joint Charity Commissioner by an order dated 5.7.2005, holding that
the claim of the respondent to be the owner of the Trust property was
adverse to the interest of the Trust. The existing Trustees were directed
to take necessary steps for getting a scheme framed by the Competent
Authority for proper administration of the Trust. H
398 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 17. By the Judgment and order dated 6.2.2006 under appeal, the
Division Bench of the Bombay High Court allowed writ Petition, being
W.P. No. 1442 of 1987 filed by the respondent no.1, father of the
respondent Nos. 2 to 4, challenging the validity of the Exemption
Certificate dated 21.1.1987 issued by the Collector, and quashed the
impugned Exemption Certificate. The High Court held that it was not
B
open to the Collector to grant a certificate of Exemption to the Trust as
the land had vested in the writ petitioners on 1.04.1957. The High
Court directed the authorities concerned to hold proceedings under
Section 32 G of the 1948 Act to fix the purchase price at an early date.
18. The short question in this appeal is, whether the High Court
C was justified in quashing the Exemption Certificate issued by the Collector
in terms of Section 88B of the 1948 Act in favour of the Trust,
notwithstanding the fact that the suit property belonged to “an institution
of public religious worship”.
19. The High Court has allowed the writ petition, on the ground
D that the Trust was registered for the first time on 8.8.1984. The High
Court held that as the Trust was not registered on 1.04.1957, i.e., Tillers’
Day the tenants who were in possession of the said land on that day
became deemed purchasers, and once the tenant became a deemed
purchaser, the ownership of the land vested in him. The holders could
E not be divested of their ownership by subsequent registration of the Trust.
20. In allowing the writ petition, the High Court has relied upon
two earlier decisions of the Bombay High Court, Laxminarayan Temple
vs. L.M. Chandore1 and Chhatrapati Charitable Devasthan Trust
vs. Parisa Appa Bhoske and others2.
F 21. The High Court found that the 1948 Act, as initially enacted,
granted protection against eviction to tenants of agricultural lands. It did
not provide for any automatic purchase of the lands in occupation of
tenants. Upon insertion of Section 32 to 32 R along with some other
Sections by amendment of the 1948 Act by Bombay Act No.XIII of
G 1957, subject to certain exceptions, tenants who remained in possession
on Tillers day i.e., 1.04.1957 became owners of the land in their
possession.

1
AIR 1970 Bom 23
2
H 1979 Mh.L.J.163
JANARDAN DAGDU KHOMANE v. EKNATH BHIKU YADAV 399
[INDIRA BANERJEE, J.]

22. The relevant provisions of Section 88B inserted by amendment A
of the 1948 Act in the same year, that is, 1957, is set out hereinbelow for
convenience:-
“88B. Exemption from certain provisions to land of local
authorities, universities and trusts.-
(1) [(1) Nothing in foregoing provisions except sections 3, 4B, 8, B
9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of Chapters
VI and VIII in so far as the provisions of the said Chapters are
applicable to any of the matters referred to in the sections
mentioned above shall apply,
(a) to lands held or leased by a local authority, or University C
established by law in the [2] [Bombay area of the State of
Maharashtra]; and
(b) to lands which are the property of a trust for an educational
purpose, [3] [a hospital, Panjarapole, Gaushala] or an institution
for public religious worship; D
Provided that,-
(i) such trust is or is deemed to be registered under the Bombay
Public Trust Act, and
(ii) the entire income of such lands is appropriated for the E
purposes of such trust;”
23. Section 88B provides for exemption of land being the property
of a Trust, for inter alia public religious worship and/or educational
and/or social purpose from the vesting provisions. The High Court noted
that while the petitioners were tenants on Tillers day i.e. 1.04.1957, the F
Trust was registered for the first time on 8th August, 1984.
24. Relying on Laxminarayan Temple (supra) the High Court
held that in order for the Trust to claim an exemption under Section 88B
of the 1948 Act, the Trust had to be registered before 1.04.1957, for if
the trust was not registered on 1.04.1957, a tenant would become a G
deemed purchaser on that date and once the tenant became a deemed
purchaser the ownership of the land which vested in the tenant would
not be divested by subsequent registration of the Trust.
25. In Laxminarayan Temple (supra), a Division Bench of the
Bombay High Court held that the word “trust” in Clause B of Section H
400 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 88B(1) of the 1948 Act is not confined to a trust for an educational
purpose but it covers trusts for other purposes mentioned in Clause (b)
including a trust for an institution for public religious worship. However,
a Trust is not entitled to the exemption till it fulfills two requirements
mentioned in the proviso, that is, (i) the trust must either be registered, or
(ii) deemed to be registered under the Bombay Public Trusts Act.
B
26. The High Court also relied upon Chhatrapati Charitable
Devasthan Trust (supra). In the aforesaid case, a Bench of coordinate
strength of the same High Court held that even where an application for
registration of a Trust had been made before 1957, but the registration
had not actually been effected before 1.04.1957, the tenant would become
C the deemed owner of the land and, therefore, a certificate under Section
88B of the 1948 Act could not be granted, rejecting the argument that
registration relates back to the date of the application.
27. The High Court rejected the submission that the decisions of
Bombay High Court in Laxminarayan Temple (supra) and
D Chhatrapati Charitable Devasthan Trust (supra) required
reconsideration and should therefore be referred to a larger Bench.
28. The Bombay Public Trusts Act was enacted to make provisions
for the better administration of public religious and charitable trusts in
the State of Bombay. Before the Public Trusts Act was passed, public
E trusts in the Bombay State were governed by various acts including the
Mussalman Wakf (Bombay Amendment) Act of 1935, the Parsi Trusts
Registration Act, 1936, the Religious Endowments Act, 1863 and the
Charitable and Religious Trusts Act, 1920.
29. The Public Trusts Act, as stated in its preamble, was enacted
F to regulate and to make better provisions for public trusts within the
State of Bombay. Before the Public Trusts Act was enacted, numerous
‘Mahants’, ‘Pujaris’, ‘Acharya’ etc. thrived and flourished on the income
of temples and/or deities. Donations/offerings made by innumerable
devotees visiting the temples were seldom accounted for by the
G ‘Mahants’, ‘Pujaris’, etc. who exercised the rights of ownership over
the temples and/or their properties.
30. The Public Trusts Act, which, as stated hereinbefore, is intended
to regulate the administration of public religious and charitable trusts in
the erstwhile State of Bombay, now the States of Maharashtra and Gujarat,
creates for the first time a unified special organization to deal with charity
H
JANARDAN DAGDU KHOMANE v. EKNATH BHIKU YADAV 401
[INDIRA BANERJEE, J.]

matters. Trusts, long in existence, came to be regulated by the Public A
Trusts Act. The Mahants, pujaris etc. who administer properties of the
deity as trustees, were brought within the ambit of the Public Trusts Act.
31. Section 2 (13) of the Public Trusts Act defines a public trust
as follows:-
“2(13) “public trust” means an express or constructive trust for B
either a public religious or charitable purpose or both and includes
a temple, a math, a wakf, church, synagogue, agiary or other place
of public religious worship, a dharmada or any other religious or
charitable endowment and a society formed either for a religious
or charitable purpose or for both and registered under the Societies C
Registration Act, 1860”
32. Counsel appearing on behalf of the appellant has very rightly
argued, that in view of the definition of ‘Public Trust’ in the Public Trusts
Act, which also includes constructive trust either for a public religious or
charitable purpose, the absence of a deed of trust would not make any D
difference to the position of the Trust as a “public trust”.
33. A constructive trust arises by operation of law, without regard
to the intention of the parties to create a trust. It does not require a deed
signifying the institution of trust. Under a constructive trust, the trust
arises by operation of law as from the date of the circumstances which E
give rise to it. The function of the court is only to declare that such a
trust has arisen in the past.
34. Constructive trust can arise over a wide range of situations.
To quote Cardozo, J., “ a constructive trust is a formula through which
the conscience of equity finds expression.” F
35. Story on Equity Jurisprudence has explained ‘Constructive
Trust” as:-
“One of the most common cases in which a Court of equity acts
upon the ground of implied trusts in invitum, is where a party has
received money which he cannot conscientiously withhold from G
another party. It has been well remarked, that the receiving of
money which consistently with conscience cannot be retained is,
in equity, sufficient to raise a trust in favour of the party for whom
or on whose account it was received. This is the governing principle
in all such cases. And therefore, whenever any controversy arises,
H
402 SUPREME COURT REPORTS [2019] 13 S.C.R.

A the true question is, not whether money has been received by a
party of which he could not have compelled the payment, but
whether he can now, with a safe conscience, ex aequo et bono,
retain it. Illustrations of this doctrine are familiar in cases of money
paid by accident, or mistake, or fraud. And the difference between
the payment of money under a mistake of fact, and a payment
B
under a mistake of law, in its operation upon the conscience of the
party, presents the equitable qualifications of the doctrine in a
striking manner. It is true that Courts of Law now entertain
jurisdiction in many cases of this sort where formerly the remedy
was solely in Equity; as for example, in an action of assumption
C for money had and received, where the money cannot
conscientiously be withheld by the party; following out the rule of
the Civil Law; Quod condition in debiti non datur uitra, quam
locupletior factus est, qui accepit. But this does not oust the general
jurisdiction of Courts of Equity over the subject-matter, which
had for many ages before been in full exercise, although it renders
D
a resort to them for relief less common, as well as less necessary,
than it formerly was. Still, however, there are many cases of this
sort where it is indispensable to resort to Courts of Equity for
adequate relief and especially where the transactions are
complicated, and a discovery from the defendant is requisite.”
E 36. Section 90 of the Trusts Act states that if there is a person in
a fiduciary relation to another, he cannot take advantage of that position
so as to gain something exclusively for himself, which he otherwise would
not have obtained, but for the position which he held.
37. Section 94 of the Indian Trusts Act, 1882 has allowed the
F creation of a constructive trust when situations went beyond the confines
of the Act. Section 94 has later been repealed by the Benami Transactions
Prohibitions Act, 1988. Section 94 of the Trusts Act read :-
“94. Constructive trusts in case not expressly provided for-

G In any case not coming within the scope of any of the preceding
sections, where there is no trust, but the person having possession
of property has not the whole beneficial interest therein, he must
hold the property for the benefit of the persons having such interest,
or the residue thereof (as the case may be), to the extent necessary
to satisfy their just demands.”
H
JANARDAN DAGDU KHOMANE v. EKNATH BHIKU YADAV 403
[INDIRA BANERJEE, J.]

38. In Gopal L. Raheja v. Vijay B. Raheja3, the Bombay High A
Court restrained itself from exercising its equitable jurisdiction to apply
the English doctrine of constructive trust when the legislature had
specifically deleted it from the Indian Trusts Act.
39. In our view, the repeal of Section 94 of the Act does not put
any fetter in declaring a trust, even if the situation falls outside the purview B
of the Act. Its jurisdiction can be derived from Section 151 of CPC and
Section 88 of the Indian Trusts Act.
40. There can be no doubt that the Trust was all along a public
trust within the meaning of Section 2(13) of the Bombay Public Trusts
Act. The Trust has rightly been registered under the Public Trusts Act, C
after due enquiry. However, all public trusts are not entitled, as of right,
to the exemption under Section 88B of the 1948 Act. The said section
only applies to lands which are property of a trust inter alia for
educational purpose or for public religious purpose provided such trust is
deemed to be registered or is registered under the Public Trusts Act.
D
41. Learned counsel appearing on behalf of the appellant
emphatically argued that the trust being a ‘public trust’ within the meaning
of the Public Trusts Act, the Trust is deemed to have been registered as
and when the Public Trusts Act came into force, long before Tillers Day,
i.e., 1.4.1957. The Public Trusts Act recognizes even constructive trusts.
E
42. The expression “deemed to have been registered” is neither
defined in the Public Trusts Act nor defined in the Indian Trusts Act,
1882. Section 28 of the Public Trusts Act provides:
“28. Public trust previously registered under the enactment
specified in Schedule F
(1) All public trusts registered under the provisions of any of the
enactments specified in Schedule A and Schedule AA shall be
deemed to have been registered under this Act from the date on
which this Act may be applied to them. The Deputy or Assistant
Charity Commissioner of the region or sub-region within the limits
G
of which a public trust had been registered under any of the said
enactments shall issue notice to the trustee of such trust for the
purpose of recording entries relating to such trust in the register
kept under section 17 and shall after hearing the trustee and making
3
2007 (4) Bom CR 288
H
404 SUPREME COURT REPORTS [2019] 13 S.C.R.

A such inquiry, as may be prescribed, record findings with the reason
therefor. Such findings shall be in accordance with the entries in
the registers already made under the said enactment subject to
such changes as may be necessary or expedient.
(2) Any person aggrieved by any of the findings recorded under
B sub-section (1) may appeal to the Charity Commissioner.
(3) The provisions of this Chapter shall, so far as may be, apply to
the making of entries in the register kept under section 17 and the
entries so made shall be final and conclusive.”
Only those Trusts which were registered under the enactments
C specified in Schedule A and Schedule AA are to be deemed to have
been registered under the Public Trusts Act. There is no other provision
in the Public Trusts Act with regard to deemed registration.
43. The legislature has, in its wisdom, very consciously provided
that all public trusts registered under the provisions of the enactments
D specified in Schedule ‘A’ & ‘AA’ to the Public Trusts Act shall be deemed
to have been registered under the Public Trusts Act. If it were the
intention of the legislature that all public trusts should be deemed to have
been registered under the State Public Trusts Act, the legislature would
have made an express provision to that effect. It is not for the Court to
E read into statute words and/or expressions which are not there in the
statute.
44. The judgment of this Court in Mahant Ramswarup Guru
Chhote Balakdas vs. Motiram Khandu Patil and Others4, cited on
behalf of the respondents is clearly distinguishable since this Court
F considered the expression “deemed to be registered” in Section 28 of
the State Public Trusts Act in the context of a trust situate in Burhanpur,
Madhya Pradesh, outside the State of Maharashtra.
45. This Court, in effect and substance, said that the re-organization
of States in 1956 and 1960, consequential to which new areas which
originally formed part of the Madhya Pradesh State became part of the
G
Maharashtra State, necessitated amendments in the Bombay Trusts Act
to incorporate Schedule AA, which, read with Section 28, inter alia,
provided that trusts registered under the Madhya Pradesh Trusts Act,
1951 would be deemed to have been registered under the Public Trusts
4
H AIR 1968 SC 422
JANARDAN DAGDU KHOMANE v. EKNATH BHIKU YADAV 405
[INDIRA BANERJEE, J.]

Act. This was to save trusts already registered under the Madhya A
Pradesh Trusts Act, 1951, in areas which later became part of
Maharashtra, from the trouble of having to once again get itself registered
under the Bombay Act.
46. This Court found that where the trust was administered outside
the State of Maharashtra, with bulk of its properties except a few plots B
of land situate outside Maharashtra, such trusts would not be governed
by the Public Trusts Act of the State of Maharashtra and would not,
therefore, fall within the ambit of Section 28 of the said Act. Thus, such
trusts, though registered under the Madhya Pradesh Public Trusts Act,
1951, would not be deemed to have been registered under the Bombay
Act. C

47. As observed above, the Trust, being a public trust, has rightly
been registered on 8.8.1984, after due enquiry. The registration of the
Trust under the Public Trusts Act cannot be questioned. However, the
registration is prospective, w.e.f. 8.8.1984. The respondents became
deemed purchasers on Tillers’ Day, that is, 1.4.1957. The right under D
Section 32 of the 1948 Act accrued to the respondents on that day. The
respondents cannot be divested of such right upon subsequent registration
of the Trust. It may be true that a Trust for a religious purpose has the
right to own and acquire property. However, such property may be taken
away by authority of law. The validity of Section 32 of the Public Trusts E
Act is not in question.
48. Accordingly, the judgment and order passed by the High Court
is affirmed and the appeal is dismissed without any order as to costs.

F
Nidhi Jain Appeal dismissed.

G

H