Holding

The phrase 'persons having interest in the trust' includes trustees, so two or more trustees may sue under s.50(ii) with the Charity Commissioner’s written consent.

Summary

The case concerned an ancient temple registered as a public trust under the Bombay Public Trust Act, 1950. After trustees terminated the services of two licensees who refused to vacate temple premises, the trustees filed suits for declaration of title and possession. Earlier suits were dismissed for lack of written consent of the Charity Commissioner under section 50(ii) of the Act. A later suit was filed under section 50(11) with such consent, joined by the trustee and a beneficiary. The legal issue was whether the phrase "persons having interest in the trust" in section 2(10) and section 50 of the Act includes trustees, allowing two or more trustees to sue with the Charity Commissioner’s permission. The Supreme Court held that the definition in section 2(10) is inclusive and does include trustees, and that section 50(11) expressly permits two or more persons having interest – including trustees – to institute such suits. Consequently, the appeal was allowed, setting aside the High Court’s decision and granting the decree for declaration of title and possession.

Issues considered

Whether the expression 'persons having interest in the trust' in s.2(10) and s.50 of the Bombay Public Trust Act includes trustees.
Whether two or more trustees, with written consent of the Charity Commissioner under s.51, can file a suit under s.50(ii) for declaration of property belonging to a public trust and for possession.
Whether s.50 of the Act is in pari materia with s.92 of the Code of Civil Procedure, 1908.

Legislation cited

Bombay Public Trust Act, 1950s. 2(10), s. 50, s. 51, s. 52(i)
Code of Civil Procedure, 1908s. 92
States Reorganisation Act, 1956

Subjects

public trusttrusteescharity commissionersection 50section 2(10)declaration of titlepossession suitinterpretation of statutesreligious institutionCPC s.92

Judgment

646
A
GOLLALESHWAR DEV AND ORS.
v.
GANGAWWA KDM SHANTAYYA llATI! & ORS.

OCTOBER 15, 1985
B
[A.P. SEN AND D.P. MADON, JJ.]

Bombay Public Trust Act, 1950, sections 2(10), 50, 51 and
52(i) read with section 92 of Code of Civil Procedure, 1908,
scope of - Whether two or more trustees of a registered public
trust can with the permission in writing of the Charity
c Commissioner, bring a suit for declaration that certain property
belongs to the public trust and for possession of the same from a
person holding it adversely to the trust - Words and phrases -
Meaning of the phrase "person having interest in the trust"
occurring in section 2(10) of the Act - Persons having interest
includes trustees and other beneficiaries -
D The first appellant Gollaleshwar Dev is an ancient temple
situate in village Golgeri in the district of Bijapur which
formed part of the erstwhile State of Bombay prior to the re-
organisation of the States. Consequent upon the enactment of the
Bombay Public Trust Act, 1950, the temple was registered as a
public trust. The district of Bijapur became part of the new
E State of Karnstaka on the appointed day i.e. November lat, 1956
under the States Reorganisation Act, 1956. The Bombay Public
Trust Act continued to remain in force in the areas which formed
part of the erstwhile State of Bombay. Appellant No.2 is the
present trustee of the temple and appellant No.3 the grandson of
ex-trustee Mariyappa the elder brother of appellant No.2 ia a
F beneficiary.

It had been cuatomary for the trusteea to permit persona
rendering services to the temple to reside in auit premises on
leave and licence basis. The respondents Shantayya and Smt.
Shankarawa, who were taken in the service of the temple and
G allowed to reside in the suit premises free of rent on condition
that they were to occupy the said premises so long as their
services to the temple were required, started creating trouble in
the yur 1957 with the result the father of appellant No.2
terminated their aervices and asked them to vacate the suit
premises. On their failure to do ao, he bro1J8ht two auita being
Civil Suits Noa. 244 and 255 of 1957 in the name of the idol
Shrea Gollaleahwar Dev ae plaintiff No.l with himself being
GOLLALESHWAR DEV v. GANGAWWA KDM SHANTAYYA 647

truatee aa plaintiff No. 2. The respondents contested the claim
on variou3 grounds and pleaded inter alia, (i) that the temple A
had no right to title to the suit premi'SeS"which belonged to· them
by virtue of a.registered gift deed dated February 19,· 1917 exe-
cuted by Mariyappa Lingappa the grandfather of appellant No. 3 in
· favour of their Predeceasor-in-title Balalochansyya Hiremath, the
firat licencee of the suit premises; (ii) that the suits brought
under section 50 (ii) of the Act were not maintainable for want II
·of consent in writing given by Charity Commissioner under section
Sl; and (iii) that the Court of the Civil Judge, Senior Diviaion,
Bijapur had no jurisdiction to entertain the suits. The suits
were diamiaaed aa not maintainable in view of the deciaion of the
Myaore High Court in Haritnl>a Tesple mid llsnomnt Teq>le, Sirsi,
by ita IW!qer, S.S. Illakappa v. Sahraya. Venkatara::amppa J!&rkar c
reported in l.L.R. 19S8 My~cre 736. Thereafter a Fresh Civil Suit
No. 2 of 1962 was instituted before .the District Judge, Bijapur
after obtaining the consent in writing of the Charity Co:mia-
aioner by the appellant No. 2 's father aa plaintiff No. 2 and the •
idol aa plaintiff No. 1. Later.Appellant No. 3 in the capacity of
D
a beneficiary And Appellant No. 2 in the capacity of the present
truatee were icplu.ied · aa plaintiffs Noa. 2 and 3 aa •percons
interested in the truat•. The High Court in the Jlle&nW!Ule had.
reversed the decision in Marikamba' s case in Ganapathi 11.ua llaik l
.&nr. v. J:a:t& Slir1. Venltatarzun De .. reported in 1964 l Mysore
L1 172. Follovicg thta. said D.ll. decision in the Diatrict Judge
held.that, •although a suit for reeovery of property belonging to E
the idol could be brought either by the idol represented by the
\ turatee or the ..anager; auch a suit is not contemplated by
section SO(ii) of the Act and waa therefore not maintainable and
that auch a auit would be a governed · by the ordinary law and
would not lie in the District Court, but either in the Court of
·. _the Civil Judge, Junior Division or the eourt of 'the Civil Judge,
Senior Division according to the valuation of the subject matter F-
of the _suit.• Aggrieved by the said judgment the appellants
preferred an appeal before the High Court. A Division lle~'i which -
heard the appeal felt that the decision in Genapathi laa's case
_ requiredcreconsideration and referred the matter for the opinion
of the Full Bench. The. Full Bench upon - the hypothesis that
aec:t1on SO of the Act- is in pari materia with section 92 of the G.
Coda of Civil Procedure expressed that _ the well-settled
principles governing section 92 - of the Code - are equally
applicable to section SO of the Act. It accordingly held: . (i)
that the suit contemplated by section SO of the Act was one of a
representative character; (ii) that a suit by .a deity_ for posses- - -
aion beillg a suit for vindicating . its own personal rights
•
H

_ _. ___ _.,____:__ _ _ _ _ _~
648 SUPREME COURT REPORTS [1965] SUPP.3 s.o.R.

A wu not governed by section 50 of the Act thst parsons wllo
institute suits in their capacity as trustees do so not in their
representative capacity representing the interests of the public
but in their own indiVidual or personal capacity to vindicate
thrlr own rights or that of the idol that is to say, merely
becauae trustees were persons having interest in the trust the
B proviaiona of section 50(11) of the Act WOUld not be attracted to
a 1u1t of this kind. Upon that view the full Bench answered the
question referred to it as follows: (i) the expression "persons
having interest in the trust" occuring in section 2(10) and
aection 50 of the Act does not include the trustees when they
institute the lluits in their capacity as trustees for vindicating
tbair private rights; and (11) consequently two or more trustees
c or a public trust C811110t file a suit under section 50(11) of the
Act for a declaration that the property belongs to the public
trust aad for po1flsaion of the s11111e from a person holding it
adveraely to the trust. In accordance with the opinion of the
Full lltnch, the l>ivsion Bench diSll!issed the appeal filed by the
appellant•• Hence the appeal by special leave.
D Al1ow1ng the appeal, the Court

lllUl : l. l The expression "person having interest" in a
trust occurring in section 2(10) and section 50 of the Bombay
Public Trust Act csrmot be given a restrictive construction. The
def1n1t1on of the expression "person having interest" in section
E 2 (10) being an inclusive one, there is no lawful justification
to exclude the suit brought by two or more trustees in the Il8llle
of the idol, to recover possession of its property against s
person holding it adversely to the trust fr<llll the purview of
section 50(11) of the Act. The definition of the words "person
having interest" in section 2(10) of the Bombay Public Trust Act,
F u amended in 1953 vu made inclusive to set at rest all doubts
and difficulties u to the meaning of these words, which were
intended and meant to be used in a generic sense so as to include
not only the trustees but also the beneficiaries and other
persons interested in the trust. The definition of the expression
"peraon llaVing 1Iiterest" in section 2(l0) is wide enough to
G include not ...rely the beneficiaries of a temple, math, wakf etc.
but alao the trustees. Therefore appellants Nos. 2 and 3 who
uod<lllbtedly are members of the founder's family i.e.
benefkiariea, are entitled to attend at performaoce of worship
or 1ervicas in the temple and also entitled to partake in the
dietribution of offerioaa to the deity and thus answer the dea-
H cription "person havi11& interest" as defined in section 2 (10) of
the Act. [657 A-0; 660 A-BJ
OOLIALESIMAll. DEV v, GANOOJWA l<OM SHANTAY'lA 649

1.2 Provfaioas contained 14 •ecti41111 so to sa of tlie llombay A
Trust Act make it clear that the Act c:rasud and regulated a
right to institute a suit by the Charity Coimdasioner or by tlio
or more persona interested in the trust, in the fom of
suppl.elllentary statutory provid-Ollll without d$feaa&DCe of the
right of the unsger 0r a trustee or 4 shabait of an idol to
bring a suit in the name of idol to t~ver the ptapetty of the ii
trust in the uaual way. Further, although aub""fiectiott (1) of
section 52 makes sections 92 alld 93 of the Code of Civil
Procedure inapplicable to public trust registered under tl!e Act,
it has lll!lde provision by section 50 for illlltitutiou of suc:lt suits
by the Charity Comnissioner ot by two or more parsOllS interested
in the trust and haviag obtained the conamt in writing of the c
Charity Comnissioner under section 51 of the Act• Therefore, any
tw or more persous interested in the trust sbould not be
deprived of the right to bring a suit as contemplated by section
50(11) (a) of the Act. [658 ll-F]
1.3 Section SO of the Bombay Trust Act is not in m!_ D
mat!!ria with section 92 of the Code of Civil Procedure. Although
section 50 of the Act ie atructured upon the pattern of section
92 of the Code of Civil Procedure, there is no provision in
section 92 of the Code analogous to clause (ii) or relief (a) of
section 50 of the Act. Section 50 authoriaes the institu,tion of a
suit by the Charity Conru.ssioner or two or more persons
interested in the trust only in the District Court ~ving
jurisdiction to try it. The scope of section 50 of the Act iii
wider th8!1 that of section 92 of the Code of Civil Procedure; lt
applies to a case so long as the relief claimed f4lla withili the
scope of the eection. one of the reliefs that can be c1s1med in a
suit brought tlllder eection 50 of the Act is that covered by
relief (a) set out in clause (ii) oamely for a declaration that a F
certain property belongs to a public truat and for possesaion
thereof from person holding it adversely to the trust vit. a suit
brought by the Charity c:.-i.aaioner or two or more persou
interested in the trust with hia CODMent in lll'iting as provided
in section 51 of the Act. Section 50 of the J!ombsy Trust Act
contemplated not only suits of a representative character bUt G
also suits by two or 110re trustees for preservatioo of the
property of the trust. Therefore, in a suit filed by the idol to
enforce its private righta, the prOViaiona of section 92 of the
Code of Civil Procedure are not attracted. [6S9 IHl)

Bia'-th ' .&ar. .,, Sbr1 'lbabr Xedl!a\wll•111lji ' on.
[1967) 2 s.c.ll. 618 diatillguiahed. H
650 SUPRJ'l1E'COURT REPORTS [1985] SUPP.3 s.c.R.

Ganapathi Baa Haik v. Kuiota 5brf. VeDkataramon Dev, I.L.R,
A 1963 Mysore 1059 overruled.

Sbree Gollales!mr Dev & Ors, v. Gsugawa lolll Sbmtayya
!lath i Ors., A.I.R. 1972 Kart (F.B.) p. reversed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1195 of
B 1972.

From the Judgment and Decree dated 19.10.1971 and 5.4.1971
of the Mysore High Court in Regular First Appeal No. 57 of 1967.

S.S. Javali and B.P. Singh for the Appellants."
c R.B. Detar for the Respondents.

The Judgment of the Court was delivered by

SEN, J, This appeal on certificate from the judgment and
decree of the Karnatal<a High Court dated April 5, 1971 raises a
question of general public importance. The question is whether
D two or more trustees of a registered public trust can, with the
permission in writing of the Charity Commissioner as provided for
in s •51 of the Act, bring a .suit for declaration that certain
property belongs to the puolic trust and for possession of the
same from a person holding it adversely to the trust under
s.SO(ii) of the Bombay Public Truats Act, 1950. That depends on
E whether the words 'persons having interest in the trust occur-
ring in •· 2(10) and s.50 of the Act do or do not include the
trustees of a registered public trust. If they do not, two or
more trustees cannot file a suit as contemplated by s.SO(ii) of
the Act. There had been a divergence of opinion in the High Court
as to the precise meaning of the words 'persons having interest
F in the trust' in s.2(10) and s. 50 of the Act and as conflicting
views had been expressed by different Benches from time to time,
the matter was referred to a Full Bench. The correctness of the
view taken by the Full Bench is in question in this appeal.

Put very briefly, the essential facts are these. Shree
G Gollaleshwar Dev is an ancient temple and Is situate in village
Golgeri in the district of Bijapur which formed part of the
erstwhile State of Bombay prior to the reorganization of the
States. Consequent upon the enactment of the Bombay Public Trusts
Act, 1950, the temple was registered as a public trust. The
district of Bijapur became part of the new State of Karnatal<a on
H
GOLLALESHWAR DEV v, GANGAWWA KOM SHANTAYYA [A. P. SEN, J, ] 651

A
the appointed day i.e. November 1, 1956 under the States
Reorganization Act, 1956. The Act has continued to remain in
force in the areas which formed part of the erstwhile state of
Bombay.

It had been customary for .the trustees tp permit persona B
rendering services to the temple to reside in the suit premises
on leave and licence. The subject-matter in dispute conaisting or
arches alongside the eastern, northern and southern walls of the
temple are meant for the use of devotees for their temporary rest
and stay, when they come to visit the temple. The main temple
itself is situate in the middle surrounded by an open courtyard. c
The suit premises being within the four walls of the temple, they
form part of the temple and are entered in the certificate of
registration as belonging to the temple.

lt appears that plaintiff no. 2's uncle Mariyappa Lingappa
permitted one Balalochanayya Hiremath to reside in a part of the o
suit premises as he happened to be a man of saintly pursuits and
one without a family. Subsequently, Balalochanayya left the
premises occupied by him. Thereafter, plaintiff no. 2's father as
the trustee employed two brothers, Rachayya and Gurunandayya to
perform services for the temple and he assigned the suit
premises to them for their residence with a view that they should E
be allowed to occupy the premises free so long as the trustees
allowed them to remain in occupation and so long as they were
retained in the service of the temple. They were to remain ir.
,occupation of the •uit premises as licensees of the trustee of
the temple. Rachayya and Gurunandayya started asserting rights
derogatory to the trust. Accordingly, plal.ntiff No. 2's father as
the trustee filed Civil Suit No. 96 of 1935 in the Court of the F
Joint Civil Judge, Bijapur and the learned Civil Judge by his
judgment dated August 8, 1936 decreed the plaintiffs' claim. The
defendants went up in appeal to the Court of the District Judg~
in Regular Appeal No. 109 of 1936 but the appeal was dismissed on
November 22, 1937. Thereafter, plaintiff no. 2 1 s father terminat-
ed the services of Rachayya and Gurunandayya and called on them G
to vacate the suit premises, which they did. After Rachayya and
Gurunandayya were removed from service of the temple, Shantayya,
brother of Rachayya and Smt. Shankarawa, widow of Gurunandayya
were taken in service of the temple and allowed to reside in the
suit premises free of rent on condition that they were to occupy
the said premises so long as their services to the temple were
cequired. ln 1957, Shantayya along with Smt. Shankarawa also H
started creating trouble and plaintiff No. 2's father, according-
ly. terminated their services and asked them to vacate the suit
652 SUl'RllME COUil.t REPORtS [1985] SUPP.3 s.c.a.

A premises. On their failure to do so, he brought two suits being
Civil suits Nos, 244 and 255 of 1957 in the name of the idol
Shree Gollaleshwar Dev as plaintiff no. 1 with himself being the
trustee as plaintiff no. 2. The case of the plaintiffs was that
the defe.,dants were in occupation of the said premises with leave
and licence of the trustee of the temple and as they refused to
II deli'ler possession of the suit premises, the suits had been
instituted for a declaration that the property belongs to the
temple and for possession thereof. The defendants contested the
plaintiffs' claim on various grounds. They pleaded inter alia,
that the temple had no right or title to the suit pr~ WiiiCh
belonged to them by virtue of a registered gift-deed dated
February 19, 1917 executed ~y Mariyappa, uncle of plaintiff no. 2
c in favour of their predecessor-in-title Balalochanayya, that
there was no consent in writing given by Charity Comnissioner
under s. 51 and therefore the suits brought under s. 50(ii) of
the Act were not maintainable; and further that the Court of the
Civil Judge, Senior Division, Bijapur had no jurisdiction to
entertain the suits. The learned Civil Judge following the
decision of the Mysore High Court in llarikaliba ~le and
D Hem-nt Tl!llpl.e, Sirsi, by its Manager, S.S. llYkappa V• Subraa
Venkatsraunappa llarlwr, I. L.R. 1958 Mysore 736, upheld these
contentions and dismissed the suit as not maintainable.

It was after this that the present suit was brought by the
aforesaid plaintiffs in the Court of the District Judge, Bijapur
E as Civil Suit No. 2 of 1962 under s. 50(11) of the Act for the
aforesaid reliefs, with the consent in writing of the Charity
Commissioner granted under s. 51. As earlier, the suit was
instituted by appellant no. 2's father as plaintiff no. 2 in the
nallle of idol· shri Gollaleshwar Dev as plaintiff no. 1. Plaintiff
no: 2 was imp leaded as the present trustee of the temple and
F plaintiff no. 3 as the grandson of Mariappa, the elder brother of
plaintiff no. 2. as a beneficiary. Plaintiffs. nos. 2 and 3 joined
the suit as 'persons interested in the trust' • The High Court in
the meanwhile had reversed the decision in llarikmlba's case in
Genapathi Ram Naik ' ~· v. iu&4 Sbri Venkatraman lleY, 1964 1
Mysore L.J. 172, The learned District Judge following the
G decision in Ganapatbi limo Nailt's case held that although a suit
for recovery of property belonging to the idol could be brought
either by the idol represented by the trustee or the manager,
• such a suit is not contemplated by s. 50(11) of the Act and was
therefore not maintainable. It was observed :
H "The words 'persons having interest in the trust' in
s. 50 denote a person whose interest is inferior to
GOLLALESllWAR DEV v. GANGAllWA !(OM SllANTAYYA [A.P. SEN, J, j 653

that of a trustee or iaaoager and it ia by rqaon of

-r
the exiatence of that inferior or Slll!lllar intereat
that s. 50 Qf the Act lil<e s. 92 of the Codo! of Civil
Procedure, 1908 autboriaes th11 instituti<1n of a auit
and regulatea it in the pr<1vided. therein. But
that section d<>es not govern the institution of a auit
by a per!l<ln posaeaai~ 4rgtr o.nd higher intereet B
whicll ilJ not regulated by H•"
The l.Q~d diatrict Judge aecordiogly held th!lt 111JCh a sl!it
would be governed bY the ordinilry law and wuld oot lie in tile
Diatrict Court but either in the Coll!'t <>f the CivU Jud,ge, Junio;r;
Diviail>n Pr the C9urt of the C.ivH J!ldge, h!lior Piv.iaion,
11CeOrdi11i w tile val1111tiPn l>f the subj flct'"lll!lttflr pf the .suit.

4,ggri11vad by th<! j!JdgJ!l!!l!t l>f tll!I l>istrict J!ldgl! tbe
appell!Ulte preferred an appe!ll bl!f!lre tbe 111,gll Qi1.1rt. A l>f.viaion
Be!ldl which heard the appeal felt that th!! decisio11 in C z •1 '
8-'11 ~se required reconaideratio11 and framed two !j-t~ for o
the opi!li1111 of the Full llench, -l;y :

1. Whl!ther the expression 'perai>ns h!ivi11g int-t iii
tll!I tJ:USt' !>ceu<r!nj! i11 .a. i(lO) I'm\ fl• W 9f the Act
l.11cl!!!le11 tr~t:eM Jll119.

2. ~tlu!r Pl!> 11r !ll<>r!l tr!J'!tefl!I ot ll pl.IP1,1.c tJU!lt e!UI
fU.e a 1111it fgr dee4r11t!o~ thet 11 P!1!>Pllrt1 b!>lo~s tQ
the publi<: trust and for rM.Ov11ry of po11ae11111011 of tha
BlllllB fi:om s person holding it adversely l:o ibe Ul.lat
Ullder s, 50 (ii) of the Act.

'l'he F1.1U l!!lnc:h up<m tllfl hypotliesis t))at a.$0 of !:he Act i• f'
ill ·pad J11Steri11 Witli ·a• 9' lilf !:he Cod!> l!llj>l=M!ll!4 tll!!t ~ W~l
ll!lttlfl!I prJ.Jl.Cij)~11 $9Yllml.IJI! 11. ~ 11£ ti:!!! Cod!! 11r11 e!Jll!lll111Pl'l4-
&iablfl to ,., 50 1>.f the ~~. II; 11"!10rli!<Wl1 l!llU f11l~11j ~
4e~is19.11 of w~~tfe, .J. i.11 ~ ~ ~ ,,. ~ w
~. !.i..P.. (1006) ,:U C!!l .• 7W! 11t p,!Jl)7, !!!!II VIWWPa oUlllr
4ei:1s!!>l!!l 9f 4iffflrflllt Hl.jli) <%>!1rj:s U}'iJW 4 - l:be II~ ~
1>U1><:t of 1'• 9Z of !:he 0>4e l!lld ~. B.K, '*'111lerJe4'11 Jqor<1 ·iaw
J.ect11res on the llin4u Law pf llet~io!ls and Oiad~JA Truate, 3rd
e!i.11., J'- 347, that the 1111it j:Olll:emplli!ted by ll• 50 of ~ .A¢ 1tU
9lle of 11 r11pres11Jl.tativ11 i;her.B!lter• 'l'he 1>beerv.11t:l.9!!.a of W®dJ:!lff<1,
+ ill tlJ4 !:4Se Of ~ ~ ~ 'l'• ~ ..,. ~ (eupr.a)
flhLgb 1!1111 b@"- th§ .~ clal!.siCllll
~" -
"""r!! !:!I !:be d.fieas
H
654 SUP!ill'.E COURT REPORTS [1985] SUPP.3 s.c.R.
A
"The suit contemplated by the section is one of a
representative character.

It is obvious that the Advocate-General, Collecto·r or
other Public Officer can and do sue only as
B representing the public and if, instead of these
public officers, two or more persons having an
interest in the trust, sue with their consent, they so
sue under a warrant to represent the public as the
objects of the trust : see UW!Jwawlas Baglnl!N!th Das
v. Jugal 1.ishore, I.L.R. (1896) 22 Bom. 216, 220.
c It follows from this that when a person or persons sue
not to establish the general member or members, but to
remedy a particular infringement of their own indivi-
dual right, the suit is not within or need not be
brought under the section."

It next relied upon the decision of this Court in Bishwauath
D & Anr. v. Sbri Thakur lladbaballabhji & Ors. (1967] 2 s.c.R. 618,
laying down that a suit by an idol, as a juristic person against
persons who interfered unlawfully with the property of the idol,
was a suit for enforcement of its private right and was therefore
not a suit to which s. 92 of the Code applied and thus such a
suit was outside the purview of s. 92 of the Code and it was not
E a bar to its maintainability, for the conclusion that a suit
instituted by the idol represented by its trustees or by presons
as qua trustees for recovery of trust property ia a suit for
enforcement of the private rig~ts of the idol or the trustees.

The Full Bench approved of the view expressed by Somnath
F Iyer and Gopivallabha Iyengar, JJ. in Ganapathi llam Naik v. Komt> 1
Sbri Venkatarllllall Dev I.L.R. (1963) Mys. 1059, that a suit by a
deity for possession being a suit for vindicating its own
personal rights was not governed by s. 50 of the Act but
disagreed with it on the construction placed by it upon the words
'person having interest' in s.2(10) and s. 50 of the Act. The
G Division Bench in Genapathi llaa's case held th8t the expression
'·person having interest 1 denotes one whose interest is inferior
to that of a trustee or a manager and it is by reason of
existence of that inferior or smaller interest that s. 50 of the
Act, like s. 92 of the Code authorises the institution of a suit
and regulates it in the manner provided therein. It was of the
H view that s. 50 of the Act does not govern institution of a suit
by a perso~ possessing larger and a higher interest which is not
regulated by it, and differed from the view taken by Hegde, J. in
GOIJ.ALESllWAR DEV v. GANGAWWA KOM SHANTAYYA [A. P. SEN, J. J 655

A
Shrl Harikubs Temple v. Subraya Venkataruauappa, I.L.11., (1958)
Mys. 736, holding thst a suit by an idol represented by the
trustee was governed by s. 50 of the Act. The Full llE!nch
accordingly held thst persons who institute suiu in their
capacity as trustees do so not in their representative capacity
representing the interests of the public but in their own 8
individual or personal capacity to vindicate their own rights or
that of the idol. That ls to say, merely because the trustees
were persons hsvl.ng interest in the trust, the provisiona of s.
50(11) of the Act would not be attracted to a suit of this kind.
Upon this reasoning, the Full Bench observed :
11
c
It ia, therefore, clear that the expression ntwo or
more persons having an interest in the trust" in s. 50
of the Act cannot include the trustees but persons
other than the trustees who have an interest in the
trJSt. The reason for holding thst the expression "two
or more persons having an interest in the trust" D
cannot be construed to include trustees, is not
because the trustees are not persons interested in the
trust but because of the character of the. suit
contemplated under s. 50 of the Act.

The remedy of the idol represented by its trustee or E
of the trustee• to enforce their individual rights ls
not to institute a suit under s. 50 but to sue in the
ordinary courts in the usual way as any other citizen,
and for such a suit, the trustees are not required to

, satisfy the conditions of s. 50 of the Act. A suit for
recovery of trust property instituted by a trustee not
because one for enforcement of the right of the
public, but being merely for enforcement of the
private rights of the trust or trustees, does not, in
F

our opinion, fall within the scope of section 50 of
the Act."

Upon that view, the Full Bench answered_the questions referred as G
follows :

1. The expression "peraons having interest in the
trust" occurring in s. 2(10) and s.50 of the Act does
not include the trustees when they institute the suits
in their capacity as trustees for vindicating their
private rights. H

2. Consequently, two or more trustees of a public
truat cannot file a suit under s.50(11) of the Act for
656 SUPRF.ME COURT REPORTS [1985} SUPP.3 s.c.R.

A
a declaration that the property belongs to the public
trust 1md for possession of the same from a person
holding it adversely to the trust.

lr) accordance with the opinion of the Full Bench, the Division
B Bell4lh dismissed the appeal filed by the appellants.

&!fore we advert to the argllJilent based on s.50 of the Act,
it should be 100ntioned that it is undisputed that the temple of
Shree Gollaleshwar ilev is a public temple registerl'd as a public
trust un4er the provisions of the Act· The plaintiffs suing are,
first, the idol, second, a trustee, and third, a member of the
c f!llll!ly creating the endowment i,~. a bel!1lficiary. The question is
whether the plaintiffs nos, 2 and 3 are persons having an
intere~t in th~ trust within the meaning of 5,2(10) which reads

"2(10) "Person having interest" includes -
l
(a) in the case of a temple, a person who is entitled
IJ to attend at or is in the habit of attending the
performance of worship or service in the temple, or
who is entitled to partake or is in that habit of
partaking in the distribution of gifts thereof;

(b) in the case of a math, a disciple of the math or a
E person of the religious pursuasion to which the math
belongs ;

(c) in the case of a wakf, a person who is entitled to
receive any pecuniary or other benefit from the wakf
and includes a person who has a right to worship or to
F perform any religious rite in 11 JjlQSque, idgah,
imambara, dargah, maqbara or other rijligious institu-
tions connected with the wakf or to participate in any
religious or charitable institution un4er the wakf;

(d) in the case of a society reghtered under the
G Societies Registration Act, 1860, any JDe111ber of such
society; and

(e) in the case of any other public trust, any
beneficiary."

H The word 'trustee' as defined in s. 2(18) rellde 1
GOL!ALESf!WAR DEV v. GANGAWWA KOM SHANTAYYA (A,P. SEN, J,] 657

A
"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;"

By the Bombay Public Trusts (Amendment) Act, 1953, the word
includes' was substituted for the word 'means', The definition B
of the words 'person having interest' in s.2(10) was made
inclusive to set at rest all doubts and difficulties as to the
meaning of these words, which were intended and meant to be used
in a generic sense so as to include not only the trustees but
also the beneficiaries and other persons interested in the trust.
lt would therefore appear that the definition of the expression
'person having interest' in s.2(10) is wide enough to include not
c
merely the beneficiaries of a temple, math, wakf etc. but also
the trustees. lt must therefore follow that plaintiffs nos.2 and
3 who W1doubtedly are members of the foWlder's family Le. bene-
ficiaries, are entitled to attend at performance of worship or
service in the temple and also entitled to partake in the distri- D
bution of off ering9 to the deity and thus answer the description
'person having interest' as .defined in s.2(10) of the Act.

Section 50 of the Act on the construction of which the
appeai depends, insofar as material, provides as follows :
E
"SO. In any case -

(i) **•** * *
(ii) where a declaration is necessary that a
particular property is a property belonging to a
public trust or where a direction is required to
F
recover the. possession of such property or the
proceeds thereof or for an account of such property or
proceeds from any person including a person holding
adversely to the public trust, or

(iii) where the direction of the court is deemed
G
necessary for the administration of any public turst.

The Charity Commissioner or two or more persons having
an interest in the trust and having obtained the
consent in writing of the Charity Commissioner as
provided in Section 51 may insLitute a suit whether
contentious or not in the court within the local
H
limits of whose jurisdi~tion the whole or part of the
subject matter of the trust is situate, to obtain a
decree for any of the following reliefs :
658 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

(a) an order for the recovery of the possession of
A
such property or proceeds thereof."

Sub-section (1) of s. 51 of the Act which also has a material
bearing, reads :

"51(1) If the persons having an interest in any public
I!
trust intenJ to file a suit of the nature specified in
section SO, they shall apply to the Charity
Commi~sioner in writinll for his consent. The L'harity
Commissioner, after hearing the parties and after
making such inquiry as he thicks fit, may Yithin a
period of six months from the date on which the
application is ma.de, grant or refuse his consent to
c the institution of such suit. The order of the Charity
Commissioner refusing his consent shall be in ~riting
and shall state the reasons for the refusal."

Sub-s.(l) of s.52 of the Act provides that notwithstanding
anythilll! contained in the Code of Civil Procedure, 1908, the
provisions of s. 92 of the Code shall not apply to the public
IJ
trusts governed by the Act.

It is clear from these provisions that s.50 of the Act
created and regulated a right to ir.stitute a suit by the Charity
Commissioner or by two or more person interested in the trust, in
the form of supplementary statutory provisions without defeasance
E
of the right of the manager or a trustee or a shebait of an idol
to bring a suit in the name of idol to recover the property of
the trust in the usual way. There is therefore no reasod why the
two or more person interested in the trust should be deprived of
the right to bring a suit as contemplated by s.50(ii)(a) of the
Act. Although sub-s. (1) of "' 52 makes ss. 92 and 93 of the Code
F
itlllpplicable to public trusts registered under the Act, it has
made provision by s. 50 for institution of such suits by the
Charity Colllllissioner or by two or more persons interested in the
trust and having obtained ttle consent in writill6 of the Charity
Comnissioner under a. 51 of the Act.
G
We are unable to subscribe to the view expressed by the High
Court. Although the Full bench rightly adverted to su~. (1) of
s. 52 of the Act which excludes the applicability of ss.92 and 93
of the Code to the public trusts governed by the A.:!t, it was not
right in its conclusion that a snit instituted by the idol
represented by two or more trustees, wit"h the 'W-ritten consent of
H
GOLLALESHWAR DEV v. GANGAWWA KOM SHANTAYYA [A.P. SEN, J,] 659

the Charity Commissioner as provided in s. 51 of the Act, was not
within the purview of s. 50(ii)(a) of the Act and therefore could A
not be brought in the Court of the District Judge. Although s. 50
of the Act is structured upon the pattern of s. 92. of the Code,
the Full Bench failed to appreciate that there is no provision in
s. 92 of the Code analogous to cl. (ii) or relief (a) of s. 50 of
the Act. It will be seen from s. 50 that the section authorizes
the institution of a suit by the charity Commissioner or two or B
more persons interested in the trust only in the District Court
having jurisdiction to try it. The scope of s. 50 of the Act is
wider than that of s. 92 of the Code. It applies to a case so
long as the relief claimed falls within the scope of the section.
One of the reliefs that can be claimed in a suit brought·under s.
50 of the Act is that covered by relief (a) set out in cl. (ii) c
viz. for a declaration that a certain property belongs to a
public trust and for possession thereof from a person holding it
adversely to the trust viz. a suit brought by the Charity
Commissioner or two or more persons interested in the trust with
his consent in writing as provided in s. 51 of the Act.
D
The fallacy underlying in the reasoning of the Full Bench
lies in the wrongful assumption that s. 50 of the Act is in~
materia with s. 92 of the Code. It is upon that erroneous
hypothesis that it observes that the suit contemplated by s. 50
of the Act is one of a representative character. It overlooks the
scope and effect of s. 50 of the Act which contemplates not only E
suits of a representative character but also suits by two or more
trustees for preservation of che property of the trust. The
reasoning of the Full Bench that if the suit is filed bv the idol
to enforce its pri.,;ate rights, the provisions of s. '92 of the
Code are not attracted and a fortiori the same principles equally
govern suits under s. 50 of-the Ac.t, is not worthy of acceptance.
The Full Bench was also wrong in relying upon the decision of F
this Court in Bisbwanath's case which turned on the construction •
of s. 92 of the code. In that case, it was held that the bar of
s. 92 did not apply to a suit by an idol or by its trustees for a
declaration that the suit properties belonged to the trust and
for possession of the same from persons holding the properties
adversely to the trust inasmuch as such a suit is not a suit of a G
representative character instituted in the interests of the
public, but is really a suit for the vindication of the indivi-
dual or personal rights of the deity or the trustees. The
decision in Bisbwanath 's case is therefore clearly distingui.sh-
able and the principles laid down as to the applicability of s.92
of the Code to such suits are not attracted.
H
660 SUPREME COIJRI REPORTS [1985) SUPP.3 s.c.R.

A There is no warrant for the reatrictive construction placed
by the Full Bench on the expression 'person having intereat' in a
trust occurring in s. 2(10) and s. 50 of the Act. The definition
of the expression 'person having interest' in s. 2 (10) being an
inclusive one, there is no lawful justification to exclude the
suit brought by two or more trusteea in the name of the idol, to
B recover possession of its property against a person holding it
adversely to the trust from the purview of s. 50(ii) of the Act.

In the result, the appeal succeeds and is allowed with
costs. The judgment and decree of the High Court affirming those
passed by the District Judge, Bijapur are set aside and
the plaintiffs' suit for declaration of title to and for
c possession of the suit property together with mesne profits is
decreed.

S.R • Appeal allowed.

•