Appeal (L) No. 234 of 2012, 254 of 2012,Originating Summons No. 2029 of 2011,Suit No. 2964 of 2011

6th November, 2012

Petitioner Counsel: Mr. Iqbal Chagla,Mr. Dhirendra Sinha
Respondent Counsel: Vidhil Partners,Mr. J.P.Cama,Mr. Raj Patel,Mr.Karl Tamboli,Mr. Hetal Thakore,Mr.Rizvi Naserrali,Mr.Abhishek Prabhu,Thakore Jariwala & Associates,Mr. Mahesh Jethmalani,Ms. Ridhi Shah,Mr. Prateek Seksaria,Ms. Jesal Shah,Daru Shah & Co.,Mr. Dinyar D.Madon,Mr. Kunal Vajani,Mr.Pranay Goyal,Mr.Chinmaya Gajaria,M/s.Wadia Ghandy & Co.,Dr. Poornima Advani,Mr. Om Prakash Jha,Ms.Viralethi S.Hegde,Mr. Dakshesh Vyas,Mr. Nagendra Dube,Mr.Pranav Badheka,Mr.Prashant Pawar,Mr.Devrath Singh,Mr.Shayam Upadhyay,Mr.Parag Sharma

Cases Cited:
Re W. Holloway, 1894 Vol. 2 QB 163 [Para 16]
Whaley Vs. Busjield, 1, 54 L. T. Rep. N. S. 220: 32 Ch. Div. 125: 55 L. J. 467, Ch. : 34 W. R. 372 [Para 17]
Re Fawsitt : Galland Vs. Burton, 53 L. T. Rep. N. S. 271 : 30 Ch. Div. 231: 54 L. J. 1131, Ch. : 34 W. R. 26 [Para 17]
re Giles, 1890 43 Ch.D.391, 398 [Para 17]
Vithaldas Cusondas Vs. Dalsukhbhai Vadilal, 1919 (21) Bom. L.R 972 [Para 17,20]
Re King Mellor Vs. South Australian Land Mortgage and Agency Co, (1907) 1 Ch. 72 [Para 17,20]
Sir Lindsay Parkinson & Co. Ltd Trust Deed Vs. Smith, 1965) I All ER 609 [Para 17]
Punton Vs. Ministry of Pensions and National Insurance, (1963) 1 WLR 186 : (1964) 1 WLR.226 [Para 17]
Lewis Vs. Green, (1905) 2 Ch. 340 [Para 17]
Mazda Theatres Ltd. Vs. Gordhandas Tribhuvandas Mangaldas, 1954 B.L.R. 1080 [Para 20,24]
Bhagwandas Ichharam Panchal Vs. Royal Western India Turf Club Limited, (1969) LXXII BLR 764 [Para 20,24]
Rama Aziz Vs. Balkrishna K. Mehta, 1993 (1) Bom. C.R. 267 [Para 20]
Lyla Darius Jehangir Vs. Bakhtawar Lentin, 2007(3) ALL MR 171 =2007 (1) Bom. C.R. 915 [Para 20]
Jamsheed Kanga Vs. Parsi Panchayat Funds and Properties, 2011(3) ALL MR 171=2011(3) Mh.L.J. 966 [Para 20]
Gokul Chand De Vs. Gopi Nath Dey, AIR 1952 Calcutta 705 [Para 20,59]
Edward H.M.Bower Vs. A.M.V. Hesterlow, AIR 1939 Madras 920 [Para 20]
Shanti Devi Vs. State, AIR 1982 Del.453 [Para 20]
Dhulabhai Vs. State of Madhya Pradesh, AIR 1969 SC 78 [Para 33]
Keki Pestonji Vs. Khodadad Merwan Irani, AIR 1973 Bombay 130 [Para 34]
K.Shamrao Vs. Assistant Charity Commissioner, 2003 ALL MR (Cri) 823 (S.C.)=(2003) 3 SCC 563 [Para 35]
Sahegouda Vs. Ogeppa, 2003(3) ALL MR 1193 (S.C.) =(2003) 6 SCC 151 [Para 36]
Church of North India Vs. Lavajibhai Ratanjibhai., (2005) 10 SCC 760 [Para 37,40,47]
Hasan Nurani Malak Vs. S.M.Ismail., AIR 1967 SC 1742 [Para 39]
Iridium India Telecom Ltd. Vs. Motorola Inc., 2005(5) ALL MR 191 (S.C.) =AIR 2005 SC 514 [Para 43]
Vinita M. Khanolkar Vs. Pragna M.Pai, 1998(1) ALL MR 459 (S.C.) =JT 1997(9) SC 490 [Para 45]
Sharda Devi Vs. State of Bihar, 2003(2) ALL MR 319 (S.C.) =AIR 2002 SC 1357 [Para 45]
P.S.Sathappan Vs. Andhra Bank Ltd., (2004) 11 SCC 672 [Para 45]
Abdulla Ahmed Vs. Animendra Kissen Mitter, AIR 1950 SC 15 [Para 55]
The Godhra Electricity Co. Ltd. Vs. The State of Gujarat, AIR 1975 SC 32 [Para 56]
Delta International Ltd. Vs. Shyam Sundar Ganeriwalla, 1999(2) ALL MR 576 (S.C.) =(1999) 4 SCC 545 [Para 57]
Kerala State Electricity Board Vs. P.T.Kunhaliumma, AIR 1977 SC 282 [Para 66]
Addl. Spl. Land Acquisition Officer Vs. Thakoredas, (1997) 11 SCC 412 [Para 66]

JUDGMENT

Dr. D.Y.CHANDRACHUD, J. :- These appeals arise from a decision of a Learned Single Judge dated 5 March 2012 on an Originating Summons filed under Rule 238 of the Rules framed by this Court for the Original Side.

2. The Plaintiff, Charu K. Mehta, is a permanent trustee for life time of the First Defendant which is a public trust by the name of Lilavati Kirtilal Mehta Medical Trust. By an Indenture of Trust dated 5 July 1978, the Settlor, Kirtilal Manilal Mehta, established a Trust inter alia to afford medical relief and for the spread of medical science, including by the establishment, maintenance and support of hospitals. Under the Deed of Trust, the Plaintiff and the Second and Third Defendants were named as permanent trustees for life. The Plaintiff is the wife of the Second Defendant. The Second Defendant is one of the sons of the Settlor. The Third Defendant is the daughter of the Settlor.

3. The Second Defendant filed an application on 6 July 1978 before the Charity Commissioner for the registration of the Trust under Section 18 of the Bombay Public Trusts Act, 1950. The Assistant Charity Commissioner conducted an enquiry under Section 19 and directed the registration of the Trust on 8 August 1978. In pursuance of the order of the Charity Commissioner, entries as required, were made under Section 21 in the Public Trust Register.

Appointment of Trustees:

4. Clause 11(j) of the Deed of Trust confers upon the trustees the power to appoint any person to fill any vacancy or vacancies in the office of the Trustees or to appoint any additional trustee or trustees. This power has been conferred for the accomplishment of the Trust and without prejudice to generality of the powers conferred by the Deed of Trust or which by law may be conferred, implied or vested in the trustees. Under the Deed of Trust, the following provisions were made for the appointment of the trustees:

(i) Clause 16 provides that the Plaintiff and the Second and Third Defendants shall be permanent trustees for life time;

(ii) Clause 17 empowers the permanent trustees to appoint a permanent trustee or trustees for a term of five years;

(iii) Clause 20 empowered the Settlor, during his life time, to appoint trustees for a period of five years and thereafter, upon his death, his son, Vijay Mehta was vested with "the same power to appoint not less than five trustees";

(iv) Clause 14 provides that in the event that the trustees constituted under the Deed of Trust or those appointed thereafter were to die; desire to be discharged; refuse or become incapable to act; were adjudicated insolvent; convicted of a criminal offence involving moral turpitude and punished with imprisonment exceeding six months; remained absent from India for a period over twelve months without the leave of the trustees; or were absconding for a period of three months or more without intimating his or their whereabouts, the surviving or continuing trustees could appoint for the time being, persons in place of the trustees incurring disqualification.

5. The Settlor died on 20 July 1993. During his life time, his son Vijay, was appointed as a trustee for a period of five years on 23 July 1990. Vijay died on 24 July 2010.

The Originating Summons:

6. The Originating Summons has been instituted on the ground that the interpretation of the Trust Deed with respect to the appointment of the trustees, the powers of individual trustees and the mode of administration of the Trust has led to litigation between the trustees.

7. The basis on which the Plaintiff instituted an Originating Summons is as follows :

(i) Under Clause 20 of the Deed of Trust, Vijay, as the son of the Settlor, is vested with the "same power" as the Settlor to appoint "not less than five trustees". According to the Plaintiff, the expression "not less than five trustees" should be construed to mean the appointment of trustees upto a maximum of five. However, according to the Plaintiff, Vijay appointed trustees (including the Fifth Defendant on 15 January 2007) though he had already appointed five trustees. The case of the Plaintiff is that Vijay contravened Clause 20 by making appointments in excess of five trustees though persons already appointed were acting as such at the relevant time. The Plaintiff has stated that these appointments by Vijay Mehta in excess of five trustees have been challenged in various proceedings. According to the Plaintiff, the expression "not less than five trustees" meant that Vijay Mehta had the power to appoint a maximum of five term trustees;

(ii) Clause 14, it is urged, "lays down certain disqualifications", but only provides for an interim appointment of a person in place of a trustee suffering a disqualification. A change report was filed by Vijay Mehta claiming that the Second Defendant remained absent from India for a period of twelve months without the leave of the trustees in writing. According to the Plaintiff, as a matter of record, the Second Defendant did obtain the leave of the Board of Trustees. But even assuming that he did not, a permanent trustee -it is urged - could not be removed and at the highest, an appointment could have been made in his place for the duration of his absence. A permanent trustee appointed for life time under Clause 16, it is urged, is not susceptible to a disqualification to which other trustees are subject except such disqualification which may render them inherently incapable of executing the Trust. Moreover, a trustee who incurs a temporary disqualification cannot be removed, but can only be substituted by a new trustee for such period as a disqualification persists;

(iii) The power conferred upon the trustees in Clause 11(j) to appoint any person to fill in a vacancy in the office of trustees or to appoint additional trustees cannot be utilised to prejudice the rights of permanent trustees under Clause 17 to appoint a permanent trustee or the power conferred under Clause 20 on Vijay Mehta (during his life time) to appoint term trustees. What the Settlor intended is that basically the three permanent trustees would have the power to appoint additional trustees either as permanent trustees or as term trustees for five years not exceeding three and the remaining five trustees would be appointed by the Settlor as term trustees and on his death, by his son, Vijay Mehta. The power under Clause 11(j) to appoint new or additional trustees can be utilised only when Clauses 17 and 20 cease to be operational. However, by misinterpreting Clause 11(j), the Defendants appointed Defendant No.11 as a permanent trustee to fill in an alleged vacancy created on the death of Vijay Mehta in respect of which the change report is stated to be pending adjudication. A suit was instituted before the City Civil Court challenging the appointment of Defendant No.11. At all material times, since the inception of the Trust, till the appointment of Defendant No.11, all trustees have been appointed under Clause 17 or 20 and taking recourse to Clause 11(j) would it is urged be contrary to the wishes of the Settlor as reflected in the Trust Deed. Clause 11(j) embodies a residuary power which can be exercised only when Clause 17 and Clause 20 are inoperational. In any event, Clause 11(j) cannot be utilised to appoint a permanent trustee for which a specific power is conferred in Clause 17 of the Deed of Trust. Clause 11(j) is a general power which cannot override Clause 17;

(iv) The appointment of a proxy under Clauses 11(h) and 11(k) is only for the purposes of accomplishing the Trust. However, in the past, several persons appointed as trustees had furnished a Power of Attorney to Vijay Mehta to attend a meeting of the Board of Trustees and to take decisions relating to the management and administration of the Trust and its affairs and properties. A trustee cannot delegate his power under a Deed of Trust, trusteeship being an office of confidence. Clause 11(k) only contemplates that the power of trustees can be represented by a proxy at an outside meeting and does not confer power on an individual trustee to appoint a proxy to attend and vote at a meeting of the Board of Trustees. Resolutions passed by any proxy at a meeting of the Board of Trustees are consequently invalid.

8. On this foundation, the Plaintiff has framed the following questions for the determination of this Court in the Originating Summons:

"a) Whether the expression "not less than five trustees" as appearing in Clause 20 of the Trust Deed dated 05.07.1978 of the Lilavati Kirtilal Mehta Medical Trust means or implies the power to appoint upto a maximum of five trustees, who will act as trustees for a period of 5 years;

b) Whether the Permanent Trustees named under Clause 16 of the Trust Deed are Permanent Trustees for lifetime and are not susceptible to any disqualification to which the trustees appointed otherwise are, except such disqualification which may render them inherently incapable of executing the trust;

c) Whether an appointment for the time being of a person in place of a Trustee suffering from any disqualification under Clause 14 of the Trust Deed dated 05.07.1978, is an appointment only for such time that the disqualification continues, subject, however to the unexpired term of the disqualified Trustee;

d) Whether the power under Clause 11(j) for appointment of additional/new Trustees can be resorted to till such time as such an appointment is capable of being done under Clause 17 or Clause 20 of the Trust Deed;

e) Whether Clause 11(j) of the Trust Deed permits that appointment of Permanent Trustee/s, which is a specific power as provided under Clause 17 of the said Deed of Trust;

f) Whether the powers and authorities of the Trustees listed in sub-clauses (a) to (zi) under Clause 11 of the Deed of Trust are expressly conferred on the "trustees", i.e., the collective body of the Board of Trustees of the Trust or on individual Trustees;

g) Whether the appointment of a power of attorney holder under clause 11(h) or a proxy under clause 11(k) of the Trust Deed can be done only by the collective body of the Board of Trustees or whether the same can be done by an individual trustee;

h) Whether a power of attorney holder appointed under Clause 11(h) or a proxy appointed under Clause 11(k) of the Trust Deed can be delegated discretionary duties or powers of a trustee including, but not restricted to, the power to attend/discuss/ participate/vote/pass a resolution/constitute a quorum in a meeting of the Board of Trustees of the said trust, or whether such power of attorney holder or proxy can be delegated purely ministerial acts only."

The judgment in appeal:

9. The Learned Single Judge by a judgment and order dated 5 March 2012 came to the conclusion that the Originating Summons was maintainable. Four preliminary issues were raised, having regard to the defence of the Defendants, these being :

(I) Whether the jurisdiction of the Court to interpret the clauses of the trust deed is barred by virtue of clause 11(v) thereof;

(II) Whether this Court lacks inherent jurisdiction to entertain and try this Originating Summons in view of Section 80 of the Bombay Public Trusts Act, 1950;

(III) Whether the Originating Summons is not maintainable as the Plaintiff had not obtained the permission of the Charity Commissioner under Section 51 of the BPT Act to file it; and

(IV) Whether the Originating Summons is barred by limitation.

The Learned Single Judge held that: (i) The power which is conferred upon the trustees in Clause 11(v) of the Deed of Trust to decide all questions arising in the administration of the Trusts, including all questions relating to the interpretation of its provisions did not bar the jurisdiction of the Court to interpret the provisions of the Deed; (ii) While Section 80 of the Bombay Public Trusts Act, 1950 bars the jurisdiction of the Civil Court to decide or deal with any question which is to be decided or dealt with by any officer or authority under the Act and in respect of which the decision of such officer or authority is made final and conclusive, the Assistant Charity Commissioner has no power akin to Rule 238 of the High Court Original Side Rules to decide the construction of a deed simpliciter; (iii) What is made final and conclusive in Section 22 is whether a change should be effected or not but the findings on the issues which may be required to be dealt with while arriving at this decision are not made final. In other words, what is made final and conclusive is an amendment in the entries pursuant to a decision under Section 22 and not a finding on the basis of which those entries are arrived at; (iv) The Originating Summons was not barred by Section 50 since the direction and interpretation which the Plaintiff seeks did not fall within the ambit of that provision; and (v) In an Originating Summons, the question of a right to sue does not arise, there being no lis between the parties and since the Plaintiff only seeks an interpretation of the provisions of the Deed of Trust. The right under Rule 238 was held to be a continuing right.

10. Having answered the preliminary objection as noted above, the Learned Single Judge recorded that the Plaintiff does not want to lead any evidence and that consequently as the Plaintiff did not wish to lead any evidence, the Defendants stated that they do not desire to lead any evidence either. The Learned Single Judge came to the conclusion that the exercise of his discretion was not warranted and that this was not an appropriate matter to be decided on an Originating Summons. For one thing, the Learned Single Judge was of the view that the Plaintiff and most of the Defendants are trustees, but are not beneficiaries and the consequence of a finding on a demurer in a summary proceeding under Rule 238 would affect the beneficiaries of and proper administration of the Trust. The Learned Single Judge also relied upon certain observations in a judgment of a Division Bench of this Court while entertaining an Appeal from Order against an interlocutory order of the City Civil Court that in the present case the documentary material, surrounding circumstances and evidence would have to be enquired into. The Learned Single Judge was of the view that the clauses of the Deed of Trust are riddled with complexities which can only be resolved on an in depth analysis after considering all available evidence, documentary as well as oral. A decision as to whether the provisions of the Deed of Trust are in conflict with each other, it was held, would be required to be tested in a trial and not in a summary proceeding. After considering the provisions of the Deed of Trust, the Learned Single Judge inter alia held that Clause 20 for instance, may call for a rectification of the Trust Deed, but that would not entitle the Court to interpret the deed contrary to its express terms. Several proceedings, it has been held, have been filed to challenge the exercise of the powers by Vijay Mehta under Clause 20 which are pending and it would be appropriate if that clause is interpreted in such proceedings. An interpretation of the clause, even in favour of the Plaintiff, it was held would not necessarily put an end to the proceedings which have been filed. Principally on the basis of these findings, the Learned Single Judge has declined to exercise his discretion under Rule 238.

Originating Summons:

(i) High Court Rules:

11. Chapter XVII of the rules framed by the High Court of Judicature at Bombay on the Original Side deals with Originating Summons. Rule 238 provides as follows :

"R. 238 Who may apply for the issue of originating summons and in respect of what matters. - The executors or administrators of a deceased person or any of them and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir or legal representative, or as beneficiary under the trusts of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may apply for the issue of an Originating Summons returnable before the Judge in Chambers for such relief of the nature or kind following as may by summons be specified and circumstances of the case may require (that is to say), the determination, without an administration of the estate or trust, of any of the following questions or matters :-

(a) any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or legal representative or beneficiary;

(b) the ascertainment of any class of creditors, devisees, legatees, heirs, legal representatives, beneficiaries or others;

(c) the furnishing of any particular accounts by the executors, administrators or trustees and the vouching (when necessary) of such accounts;

(d) the payment into Court of any moneys in the hands of the executors, administrators or trustees;

(e) directing the executors, administrators or trustees to do or abstain from doing any particular act in their character as such executors, administrators or trustees;

(f) the approval of any sale, purchase, compromise or other transaction;

(g) the determination of any question arising in the administration of the estate or trust."

12. Since in the present case the jurisdiction of the Court has been invoked to interpret a deed of trust constituting a public trust, Rule 238 must be construed in that context. Hence, under the rule the trustees under any deed or instrument and any person claiming to be interested in the relief sought as a beneficiary under the trust of any deed or instrument may apply for the issuance of an Originating Summons for the determination without the administration of the trust, of any of the following questions or matters :

(i) any question affecting the rights or interest of the person claiming to be a beneficiary;

(ii) the ascertainment of any class of beneficiaries;

(iii) the furnishing of any particular accounts by the trustees and the vouching of accounts;

(iv) the payment into Court of any moneys in the hands of trustees;

(v) directing the executors to do or abstain from doing any particular act in their character as trustees;

(vi) the approval of any sale, purchase, compromise or other transaction; and

(vii) the determination of any question arising in the administration of the estate or trust.

13. Under Rule 239 any of the persons named in Rule 238 may, in like manner, apply for and obtain an order inter alia for the administration of the trust. Rule 240 provides for the service of the summons. Under Rule 241 a vendor or purchaser of immovable property may apply for the issuance of an Originating Summons. Under Rule 243 and Rule 244 respectively a mortgagee or mortgagor and a partner in a firm may inter alia apply for the issuance of an Originating Summons. Rule 245 specifies among other things that any person claiming to be interested under a deed or other written instrument, may apply for the issuance of an Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the person interested.

14. Rule 246 provides as follows :

"R. 246. Court not bound to determine question of construction. - The Court or the Judge in chambers shall not be bound to determine any such question of construction if in its or his opinion it ought not to be determined on Originating Summons."

Hence, a discretion is conferred upon the Court or the Judge in chambers on whether or not a question of construction should be decided in an Originating Summons. Rule 249 stipulates that an Originating Summons shall be in form No. 23 and shall specify the relief that is sought. The person entitled to apply is required to present the Originating Summons to the Prothonotary and Senior Master in the form of a plaint without a prayer, but setting forth the facts upon which the relief sought by the summons is founded. The plaint has to specify at the end, but not in the form of a prayer the relief which is sought by the summons. No documents have to be annexed to the plaint unless this is so required in the interests of brevity or clarity. Once accepted the plaint is numbered under Rule 250 as an ordinary suit, but with the distinguishing label "O.S." as a mark of distinction from plaints filed in ordinary suits. Upon the service of the Originating Summons Rule 253 specifies that while a defendant may file a written statement or an affidavit in answer to the plaint, there shall be no obligation to do so unless the Court otherwise directs. Rule 254 empowers the Judge, if the parties do not agree on the correctness of the facts set forth in the plaint to order that the summons be supported by such evidence as he may think necessary and to give such directions as he may think just for the trial of any question arising therefrom. Rule 255 enables a Judge hearing the summons to adjourn it to Court or if he considers that the matters in respect of which relief is sought cannot appropriately be disposed of in an Originating Summons to dismiss the summons and relegate parties to a suit in the normal course. Rule 255 provides as follows :

R. 255 - What may be done on hearing originating summons. - The Judge hearing an Originating Summons may, if he thinks fit, adjourn the summons into Court. If the Judge considers that the matters in respect of which relief is sought cannot conveniently and properly be disposed of on an Originating Summons, he may refuse to pass any order on the summons, may dismiss the same and refer the parties to a suit in the ordinary course, and in such case may make such order as to costs already incurred as may seem to him to be just."

15. Under Rule 258, if the Judge is of opinion that a matter is fit to be dealt with on an Originating Summons, he must pronounce such judgment as the nature of the case shall require and any order made shall be drawn up as a decree of the Court. Thereupon under Rule 259 the Judge is empowered to issue directions touching the carriage or execution of the decree or the service thereof on persons who are not parties, as he may think fit.

(ii) The origin of the doctrine in England:

16. The origin of the rules of procedure in England dealing with the issuance of Originating Summons has been traced in a judgment of 1894 of Lindley, L.J., speaking for the Court of Appeal in Re W. Holloway, 1894 Vol. 2 QB 163. Before the enactment of the Chancery Procedure Act of 1852, the ordinary mode of commencing proceedings in the Court of Chancery was by a bill. In certain other cases proceedings could be commenced by a petition. Under the General Orders of the Court of Chancery of April 1850, this procedure was simplified by the introduction of claims, a claim being a short "bill" without interrogatories "applicable to simple cases" (at page 167). This procedure was further simplified by the Act of 1852 under which in certain cases the commencement of a suit in Chancery was contemplated by a summons originating proceedings in chambers. The Court of Appeal noted :

"What, then, was an "originating summons" at that time ? It was a method of commencing proceedings in Chancery by a summons in chambers instead of by bill. At the time when the Judicature Act was passed there were two kinds of summonses in use, an ordinary summons and an "originating summons", the latter being used in the Court of Chancery in certain cases instead of a bill. The Rules of the Supreme Court of 1875 did not affect the practice of the Chancery Division as regarded originating summonses. The rules were re-cast in 1883, and then the term "originating summons" was for the first time introduced into the Judicature Rules and defined. The term, however, had not lost its original meaning. It still meant a summons which originated proceedings in Chancery, the summons being substituted for a writ in a suit or an action, which had by the Judicature Act taken the place of a suit"

In other words an Originating Summons meant "only a summons by which proceedings are commenced which must formerly have been commenced by a bill or a writ.".

17. Mr. Justice Chitty in the case of Re Busfield; Whaley v. Busjield, 1(54 L. T. Rep. N. S. 220; 32 Ch. Div. 125; 55 L. J. 467, Ch.; 34 W. R. 372). observed that Originating Summons when they first arose, were confined to "the simple case of an order for the administration of the personal estate of a dead man". After 1883 the subject was enlarged to include, for instance, the execution of trust. The main difference between a writ of summons and an Originating summons was held to be that in the one case the proceedings were in Court, and there are or may be pleadings, whereas in the other case the proceedings are in chambers, and there are no pleadings. The Court of Appeal, in Re Fawsitt; Galland v. Burton, (53 L. T. Rep. N. S. 271; 30 Ch. Div. 231; 54 L. J. 1131, Ch.; 34 W. R. 26). noted that an Originating Summons taken out under Order LV., R. 3 was "a civil proceeding commenced otherwise than by writ in manner prescribed by a rule of court". In a succinct statement of the object and purpose underlying an Originating Summons, Cotton LJ in re Giles, 1890 43 Ch.D.391, 398, as quoted by Pratt J, in Vithaldas Cusondas v. Dalsukhbhai Vadilal, 21 Bom. L.R 972.observed that:

"This form of action is intended to enable simple matters to be settled by the Court without the expense of bringing action in the usual way, not to enable the Courts to determine matters which invoke a serious question."

In other words, an Originating Summons was suited to those cases where there was little or no dispute of fact and the parties raised issues of law for the interpretation of the Court. In a decision of 1907, Neville, J. stated the principle in the English case of Re King Mellor v. South Australian Land Mortgage and Agency Co, (1907) 1 Ch. 72. as follows :

"In other words, it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable. For it is to be noted that originating summons is merely a method of procedure and not one that is meant to enlarge the jurisdiction of the court"

On the other hand, claims which are of a contentious nature, involving beneficiaries against trustees would not be begun by originating summons, but rather by a writ, Re Sir Lindsay Parkinson & Co. Ltd Trust Deed v. Smith, [1965] I All ER 609 n. In Punton v. Ministry of Pensions and National Insurance, (1963) 1 W.L.R. 186. the claimants who were semi skilled workers became unemployed during a trade dispute between the members of two skilled trade unions at their place of work. Refused unemployment benefit, they appealed to the National Insurance Commissioner who held that they were disqualified from receiving benefit on the ground that under the provisions of Section 13 of the National Insurance Act 1946, they were persons directly interested in the trade dispute which caused the stoppage of work. The claimants thereupon issued an Originating Summons in the Queen's Bench Division asking the Court to determine whether they were or were not persons directly interested in the dispute and to declare that they were entitled to unemployment benefit. On an application by the Ministry of Pensions and National Insurance, the Master and the Judge on appeal, ordered that the summons should be struck out as frivolous and vexatious, since it appeared to be an attempt to obtain a rehearing of matters finally determined by the Commissioner. The Court of Appeal held initially on interlocutory proceedings that the case presented a very proper matter for determination by originating summons and "indeed, it is a sensible and modern way of approach" at Page 192. The Court of Appeal held that when an originating summons is framed so as to raise a distinct and important point of law, there is not the slightest possible ground for saying that it is frivolous and vexatious. An amendment of the proceedings was allowed to reframe the issue as one of interpretation. Following the decision of the Court of Appeal in interlocutory proceedings, the Originating Summons was amended to allow the Plaintiffs to seek a determination of the question as to whether on the facts found, the Commissioner had come to a correct determination of law. The Trial Judge rejected the preliminary objection to his jurisdiction holding that he was bound by the earlier decision of the Court of Appeal in the interlocutory proceedings, but in the exercise of his discretion refused to make a declaration. On appeal, the Court of Appeal in Punton v. Ministry of Pensions and National Insurance (1964) 1 W.L.R. 226 took a different view from that which was indicated only provisionally when the matter had come up earlier at the interlocutory stage. Sellers L.J. speaking for the Court of Appeal held as follows :

"Apart from certiorari there is no machinery for getting rid of the decision of the National Insurance Commissioner and, what is more important, no way of substituting an effective award on which the claims could be paid. It would be out of harmony with all authority to have two contrary decisions between the same parties on the same issues obtained by different procedures, as it were, on parallel courses which never met or could meet and where the effective decision would remain with the inferior tribunal and not that of the High Court. ........ It is a statutory judicial tribunal to deal with a special subject-matter where the decisions will frequently be on mixed law and fact and where finality and the minimum of delay are sought to be achieved. There is much to lead to the implication that the jurisdiction of the courts was intended to be excluded and very little to be set against such a conclusion."

In a decision of the Chancery Division in Lewis v. Green, (1905) 2 Ch. 340. it was held that the procedure of an originating summons is confined to enabling the court to decide questions of construction and nothing else and to declare the rights of parties :

"It is only intended to enable the Court to decide questions of construction where the decision of those questions, whichever way it may go, will settle the litigation between the parties. It is not intended that questions of construction which, if they are decided in one way only will settle the dispute between the parties, should come up for decision on an originating summons. It would be most inconvenient to resort to the order in a case where it is quite uncertain what may be the ultimate decision on the point of construction, and where if the decision is in one way it involves further litigation."

18. The Position in law has been summarized in Halsbury's Laws of England Fourth Edition, Vol. 37 para 130. The proceedings which are appropriate to be begun by an originating summons are the following :

"(1) proceedings in which the sole or principal question at issue is, or is likely to be, one of construction or some question of law;

(2) proceedings in which there is unlikely to be any substantial dispute of fact."

19. The object of the rule, which deals only with procedure is to facilitate the determination of short questions of construction which can be examined without affidavits upon the instrument itself.

(iii) The position in India:

20. The decisions in India on the scope of an Originating Summons emphasize that while this procedure does not per se forbid a determination of a question of fact, but where a dispute on facts involves a degree of complexity, an Originating Summons would not be appropriate. In Vithaldas Cursondas v. Dulsukhbhai Vadilal, 1919 (21) BLR 972. Mr. Justice Pratt, speaking for the Court held that :

"the Rules do not forbid questions of fact being determined on an Originating Summons and this form of action is not always inappropriate whenever there is a question of fact in dispute".

But the Court held that the procedure of an Originating Summons should not be applied "where the disputed facts are of such complexity as to involve a considerable amount of oral evidence". Chief Justice M.C. Chagla, speaking for a Division Bench of this Court in Mazda Theatres Ltd. v. Gordhandas Tribhuvandas Mangaldas, 1954 B.L.R. 1080. held that the only two questions which are required are that there must be a written instrument and what should be required to be done by the Court is a declaration of the rights of the person interested under the written instrument. The learned Chief Justice held as follows :

"The right contemplated by that rule is any right, and the whole object of that rule is to make a procedure available to parties which is both cheap and expeditious for determination of disputes as to construction of a written instrument, which dispute could be settled by the Court interpreting the instrument and determining what the rights of the parties are. One would have thought that r. 241 was precisely intended to cover a case like this where a lessor and a lessee are disputing their mutual rights and the question of those rights can be determined effectively and finally by the Court construing the relevant provision of the lease and deciding what the rights of the parties are. It is perhaps not necessary to point out that our rule is based on the English r. 1 of O.LIVA, and the view consistently taken by the English Courts that the word "instrument" used in the rule was meant to receive a wide construction and applied to any written document under which any right or liability whether legal or equitable, existed; and there are innumerable cases in the books where a lease has been construed and the rights of the lessor and the lessee determined."

In Bhagwandas Ichharam Panchal v. Royal Western India Turf Club Limited, (1969) LXXII BLR 764 Mr.Justice Madon (as His Lordship then was) summarised the position as follows:

"The cases in which the Court exercises its discretion under Rule 255 against deciding a question of construction on an originating summons are also well-settled. In Vithaldas v. Dulsukhbhai (1919) 21 Bom. L.R. 972 following English cases, Pratt J. held that an originating summons was not the proper procedure to be adopted where there were disputed facts of such complexity as to involve a considerable amount of oral evidence. Similarly, in Mason v. Schuppisser, at p. 149(2), referred to earlier, Stirling J. observed that one class of cases to which an originating summons has been held not appropriate is where there is a disputed question of fact. In Lewis v. Green Warrington J. refused to hear an originating summons on the ground that even if the question of construction was decided in favour of the plaintiff, there were several defences on facts raised by the defendant which would still remain to be determined and that the question of construction was not such as would necessarily put an end to the litigation."

Mr. Justice B.N. Srikrishna (as the Learned Judge then was) speaking for this Court in Rama Aziz v. Balkrishna K. Mehta, 1993 (1) Bom. C.R. 267 held that while exercising jurisdiction in an Originating Summons the Court "is not determining a lis", since it does not adjudicate upon the rights and liabilities of parties. The Division Bench of this Court presided over by Mr. Justice R.M. Lodha (as His Lordship then was) in Lyla Darius Jehangir v. Bakhtawar Lentin, 2007 (1) Bom. C.R. 915 : [2007(3) ALL MR 171]. affirmed the principles which were laid down in the judgments of the learned Single Judges of this Court in Vithaldas Cursondas and Rama Aziz. These decisions have been referred to in a recent judgment of a Division Bench of this Court in Jamsheed Kanga v. Parsi Panchayat Funds and Properties, 2011(3) Mh. L.J. 966 : [2011(3) ALL MR 171]. In Gokul Chand De v. Gopi Nath Dey, AIR 1952 Calcutta 705 a Division Bench of the Calcutta High Court held that where the dispute between the parties cannot be disposed of merely by a construction of the deed of trust and where before the rights of parties can be decided, the Court would have to decide questions such as a plea of estoppel and a plea of adverse possession which were not pure questions of law, the procedure by way of an Originating Summons would not be an appropriate remedy. In Edward H.M.Bower vs. A.M.V. Hesterlow, AIR 1939 Madras 920 see also the judgment of a Division Bench of the Delhi High Court in Shanti Devi vs. State AIR 1982 Del.453. Leach CJ speaking for a Division Bench of the Madras High Court consisting of the Chief Justice and Justice Patanjali Shastri (as the Learned Judge then was) held that where a trust was a public trust and the matter in issue fell within the purview of Section 92 of the CPC, proceedings under which required the sanction of the Advocate General, an Originating Summons could not have been taken out.

21. The jurisprudential origin of the procedure envisaged in an Originating Summons has been traced by us in order to shed light on how the procedure has evolved, the rationale for its existence and the limitations subject to which the procedure has to be applied. History and, for judges precedent, are illuminating sources of learning. The institution of proceedings through an Originating Summons was considered as a simple and efficacious procedure that would be applied in the resolution of simple and straightforward issues of construction and interpretation. Though the ambit of the issues that could be decided in an Originating Summons came to be expanded over time, the principle underlying the invocation of the procedure remained relatively constant.

22. The rules in regard to Originating Summons indicate that this was a simple and expeditious procedure of initiating proceedings by applying for the issuance of an Originating Summons before the Judge in Chambers. The persons at whose behest an Originating Summons could be issued and the nature of the relief that could be granted are specified in the rules. A summary procedure is envisaged. But the summons remains a species of the original civil jurisdiction in a suit, commencing with a plaint under Rule 248 and ending with the pronouncement of a judgment and the drawing up of a decree under Rule 259. The judge is empowered to issue directions for the carriage and execution of the decree (Rule 260). Since the procedure envisaged is summary, the Judge retains control over the proceedings and has the discretion as to whether an Originating Summons should be entertained. Once accepted, the plaint is numbered as an ordinary suit with the letters O.S.

23. Essentially an Originating Summons has been regarded as an appropriate remedy where a question of interpretation arises that does not depend for its resolution upon an appreciation of evidence or determination of disputed factual matter of some complexity. This principle has been emphasized in the rules framed by the Chartered High Courts in India among them those of this Court on the Original Side. Fundamentally, the rules confer a wholesome discretion on the Court or the Judge in Chambers on whether a question of construction should or should not be determined on an Originating Summons. Rule 246 emphasizes that the Court shall not be bound to determine such a question if it is of the opinion that it ought not to be determined on an Originating Summons. The plaint in an Originating Summons is a plaint without a prayer, Rule 249 and there is no obligation on the defendant to file a written statement or affidavit in answer to the plaint unless the Court otherwise directs., Rule 253 Similarly, if the parties are not agreed as to the correctness of the facts set forth in the plaint, the Judge has a discretion to order the summons to be supported by such evidence as he may think necessary., Rule 254 A Judge hearing the Summons is empowered to adjourn it into Court. If the Judge considers that the matter in respect of which relief is sought cannot be conveniently and properly disposed of on an Originating Summons, he may dismiss the summons and refer the parties to a suit in the ordinary course., Rule 255.

24. These provisions indicate that a Judge is not bound to entertain an Originating Summons or to adjudicate upon the issues which are sought to be raised. Whether and to what extent evidence should be allowed to be adduced is again a matter which is in the discretion of the Court. Ultimately, a judicial discretion is conferred on whether an Originating Summons should be entertained. The provisions in Chapter XVII of the Rules on the Original Side which embody the procedure for an Originating Summons have to be interpreted broadly and liberally. However, it must be emphasized that the procedure envisages a summary remedy which is available to determine issues of construction or interpretation. Though a determination of a factual issue is not barred on an Originating Summons, conventional learning in this area is that where complexities of evidence and of fact arise, parties should be relegated to the remedy of a suit in the ordinary course. Perhaps an illustration of the nature of the issues that are apposite for determination in an Originating Summons is the case before the Division Bench in Mazda Theaters Ltd. vs. Gordhandas Tribhuvandas Mangaldas, 1954 Vol.LVI BLR 1080 in which under a lease deed, the lessee had undertaken an obligation to give complimentary passes to the lessor and to reserve one box for the use of the lessor and his family and friends in every show at a theatre. When the Government decided to levy entertainment duty, the lessee wanted a determination of the question as to whether under the terms of the lease, the liability to entertainment duty had to be borne by the lessor. This Court held that an Originating Summons was precisely intended to cover a case like that where a lessor and a lessee were disputing their mutual rights and the question of those rights could be determined effectively and finally by the Court construing the relevant provision of the lease and deciding what the rights of the parties were. Similarly, in the RWITC case (supra), Mr.Justice Madon observed that the case involved a pure question of construction of the Rules of the Jackpot of the Turf Club; there were no disputed questions of fact, all facts being admitted in the pleadings or at the hearing of the summons. The liability on the part of the Defendants to make payment was admitted and the only dispute between the parties was as regards the mode of payment which turned on a construction of the Rules. We have referred to these cases purely as illustrative of a simple dispute of interpretation that can be conveniently resolved in an Originating Summons. The factual situations in Mazda Theatre or in RWITC are not exhaustive of what can be determined in an Originating Summons. But, these are reflective of the fundamental principle that this procedure was intended to resolve questions of construction of deeds and documents which do not involve a complicated enquiry into disputed questions of fact.

The Bombay Public Trusts Act, 1950:

25. The Bombay Public Trusts Act, 1950 is an Act to regulate and to make better provisions for the administration of public religious and charitable trusts in the State. Section 17 provides that in every Public Trusts Registration Office, it shall be the duty of the Deputy or Assistant Charity Commissioner in charge to keep and maintain such books, indices and other registers as may also be prescribed. Under Section 18(1), the trustee of a public trust to which an Act has been applied, is under an obligation to make an application for the registration of the public trust. Such an application is required to be made to the Deputy or Assistant Charity Commissioner of the region within the limits of which the trustee has an office for the administration of the trust or where the trust property or a substantial portion is situated. An application for registration inter alia requires to contain a reference to the mode of succession to the office of a trustee, Section 18(5)(ii) and such other particulars which may be prescribed.Section 18(5)(viii) Section 19 provides for an enquiry for registration. Before proceeding to register a trust, the Deputy or Assistant Charity Commissioner has to make an enquiry for the purposes of ascertaining inter alia whether a trust exists and whether such a trust is a public trust; whether any property is the property of such trust; the origin, nature and object of the trust and the mode of succession to the office of the trustee of such trust. On completion of the enquiry under Section 19, the Deputy or Assistant Charity Commissioner is required by Section 20 to record his findings together with reasons as to the matters mentioned in the section. Thereupon, under Section 21, the Deputy or Assistant Charity Commissioner has to make entries in the register kept under Section 17 in accordance with the findings recorded by him under Section 20 or, if appeals or applications are made under the Act, in accordance with the final decision of the competent authority provided by the Act. Sub-section (2) of Section 21 stipulates that the entries so made shall, subject to the provisions of the Act and subject to any change recorded under the following provisions, be final and conclusive.

26. The form in which a public trust register has to be maintained & prescribed by Rule 5 of the Bombay Public Trusts Rules, 1951 read with the First Schedule. The entries required to be made in the Register include the names of the trustees and the mode of succession to trusteeship.

27. Section 22 deals with a situation where a change occurs in any of the entries recorded in the register kept under Section 17. Sub-sections (1), (2) and (3) of Section 22 are relevant for the purposes of the present case and provide as follows:

"22. Change.- (1) Where any change occurs in any of the entries recorded in the register kept under Section 17, the trustee shall, within 90 days from the date of the occurrence of such change, or where any change is desired in such entries in the interest of the administration of such public trust, report such change or proposed change to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office where the register is kept. Such report shall be made in the prescribed form.

(1A) Where the change to be reported under sub-section (1) relates to any immovable property, the trustee shall along with the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of the public trust) relating to any change in the immovable property of such public trust, for forwarding it to the Sub-Registrar referred to in sub-section (7) of section 18.

Such memorandum shall be signed and verified in the prescribed manner by the trustee or his agent specially authorised by him in this behalf.

(2) For the purpose of verifying the correctness of the entries in the register kept under section 17 or ascertaining whether any change has occurred in any of the particulars recorded in the register, the Deputy or Assistant Charity Commissioner may hold an inquiry in the prescribed manner.

(3) If the Deputy or Assistant Charity Commissioner, as the case may be, after receiving a report under sub-section (1) and holding an inquiry, if necessary under sub-section (2), or merely after holding an inquiry under the said sub-section (3), is satisfied that a change has occurred in any of the entries recorded in the register kept under Section 17 in regard to a particular public trust, or that the trust should be removed from the register by reason of the change, resulting in both the office of the administration of the trust and the whole of the trust property ceasing to be situated in the State, he shall record a finding with the reasons therefor to that effect; and if he is so satisfied, he shall record a finding with reasons therefor accordingly. Any such finding shall be appealable to the Charity Commissioner. The Deputy or Assistant Charity Commissioner shall amend or delete the entries in the said register in accordance with the finding which requires an amendment or deletion of entries and if appeals or applications were made against such finding, in accordance with the final decision of the competent authority provided by this Act. The amendments in the entries so made subject to any further amendment on occurrence of a change or any cancellation of entries, shall be final and conclusive."

28. Under Sub-section (1) of Section 22, a change in any of the entries recorded in the register kept under Section 17 has to be reported within ninety days from the occurrence of the change to the Deputy or Assistant Charity Commissioner. One of the entries which has to be maintained in the register is the mode of succession to the office of a trustee and the names of trustees. The Deputy or Assistant Charity Commissioner has to hold an enquiry for ascertaining whether any change has occurred in any of the particulars contained in the register. If the Deputy or Assistant Charity Commissioner is satisfied that a change has occurred in any of the entries recorded in the register under Section 17, he is required to record a finding with reasons therefor. Such a finding is appealable to the Charity Commissioner. The Deputy or Assistant Charity Commissioner has to amend or delete the entries in the register in accordance with the findings which require an amendment or deletion of the entries. If appeals or applications have been made against such findings, he has to amend or delete the entries in accordance with the final decision of the competent authority provided by the Act. The amendment in the entries made is under sub-section (3) of Section 22 mandated to be final and conclusive subject to any further amendment on occurrence of a change or any cancellation of any entries. Section 22A empowers the Deputy or Assistant Charity Commissioner to make a further enquiry if at any time it appears that any particular relating to a public trust which was not a subject matter of the enquiry under Sections 19, 22(3) or 28, as the case may be, has remained to be enquired into. The provisions of Sections 19, 20, 21 and 22 shall, so far as may be, apply to the enquiry, the recording of findings and to the making of entries in the register under the sections.

29. Section 70(1) inter alia provides for an appeal to the Charity Commissioner against the findings or order of the Deputy or Assistant Charity Commissioner under Sections 20, 22 and 22A among other provisions. A person aggrieved by the decision of the Charity Commissioner inter alia under Section 70 has a further remedy of an appeal to the Court under Section 72. The expression "Court" is defined in Section 2(4) to mean in Greater Mumbai, the City Civil Court and elsewhere the District Court.

30. Section 50 provides for a suit by the Charity Commissioner or by persons having an interest with the consent in writing of the Charity Commissioner. Section 50 provides as follows:

"50. Suit by or against or relating to public trusts or trustees or others.- In any case, -

(i) where it is alleged that there is a breach of any public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,

(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licesee,

(iii) where the direction of the Court is deemed necessary for the administration of any public trust, or

(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof.

the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situated, to obtain a decree for any of the following reliefs:-

(a) an order for the recovery of the possession of such property or proceeds thereof;

(b) the removal of any trustee or manager;

(c) the appointment of a new trustee or manager;

(d) vesting any property in a trustee;

(e) a direction for taking accounts and making certain enquiries;

(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or willful default;

(g) a declaration as to what proportion of the trust or property or of the interest therein shall be allocated to any particular object of the trust;

(h) a direction to apply the trust property or its income cy pres on the lines of section 56 if this relief is claimed along with any other relief mentioned in this section;

(i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary;

(j) the settlement of a scheme, or variations or alterations in a scheme already settled;

(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;

(l) an order for winding up of any trust and applying the funds for other charitable purposes;

(m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;

(n) an order exonerating the trustees from technical breaches, etc.;

(o) an order varying, altering, amending or superseding any instrument of trust;

(p) declaration or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or

(q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief or is necessary in the interest of the trust;

Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof:

Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled:

Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of section 1."

Section 50 applies to suits on a specific cause of action and for relief as specified in the provision. Section 52 has provided that notwithstanding anything contained in the CPC, the provisions of Sections 92 and 93 will not apply to public trusts. Under Section 56A(1), a trustee of a public trust may apply to the Court for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property or income thereof and the Court is required to give its opinion, advice or direction, as the case may be. The Court is, however, not bound to give its opinion, advice or direction on any question which it considers not proper for summary disposal.

Bar of jurisdiction:

31. Section 80 contains a bar of jurisdiction and is in the following terms:

"Bar of jurisdiction.- Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive."

32. The salient features of Section 80 are the following :

(i) The bar under Section 80 is subject to an express provision to the contrary in the Act;

(ii) No Civil Court shall have jurisdiction to decide or deal with any question where

(a) such a question is required by or under the Act to be decided or dealt with by any officer or authority under the Act; and

(b) where a decision or order of such officer or authority has been made final and conclusive by the Act.

The test under Section 80 is whether the question which is raised before the Civil Court is a question which is required by the Act to be decided or dealt with by an officer or authority constituted under it. Where that is so and such a decision of an officer or authority is made final and conclusive under the provisions of the Act, the jurisdiction of the Civil Court would stand barred.

33. In view of the provisions of Section 9 of the Code of Civil Procedure, 1908, the ouster of jurisdiction of a Civil Court is not readily assumed or lightly inferred. Ouster of jurisdiction has to be either explicit or necessarily implied. In Dhulabhai vs. State of Madhya Pradesh, AIR 1969 SC 78 which is the locus classicus on the subject, the Supreme Court has held that where the statute gives a finality to the orders of special tribunals, the jurisdiction of the Civil Courts must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant, but is not decisive to sustain the jurisdiction of the Civil Court. But where there is no express exclusion, an examination of the remedies and the scheme of the Act to find out the intendment becomes necessary and the result of the enquiry may be decisive.

34. A Full Bench of this Court in Keki Pestonji vs. Khodadad Merwan Irani, AIR 1973 Bombay 130 enunciated the test to be applied in determining as to whether the jurisdiction of the Civil Court is barred under Section 80. The Full Bench held as follows:

"...in order that the jurisdiction of the Civil Court to decide or deal with a question may be barred under S.80, it is necessary both that by or under the Act the particular question has to be decided or dealt with by an officer or authority under the Act and the decision of such officer or authority has been made final and conclusive by the Act. The word 'or' which originally appeared in Section 80 before the last clause "in respect of which the decision or order ....... has been made final and conclusive" had evidently crept in through oversight. It has been deleted by Maharashtra Act XX of 1971, probably, to make clear what was not sufficiently clear.", At para 15 page 133

The Full Bench held that for deciding whether Section 80 is attracted in a given case, "one must consider what, in substance and not merely in form, is the nature of the claim made in the suit and the real relief sought therein"., At para 16 page 133 The Court further held:

"If in order to afford that relief it is necessary for the Court to decide or deal with a question which by or under the act is to be decided or dealt with by an officer or authority appointed under the Act, the Civil Court's jurisdiction in that behalf is ousted. Such questions must be left to the sole and exclusive decision of the authorities specified in the Act, whether they are questions of fact or of law and whether they are simple or complicated. It is true that ouster of jurisdiction of Civil Courts is not to be readily inferred and the normal rule is the one contained in Section 9 of the Code of Civil Procedure that Civil Courts have jurisdiction to try all suits of a civil nature. But this rule is subject to the exception contained in that section itself and the exception is that the cognizance of certain suits by Civil Courts may be expressly or impliedly barred. Section 80 contains an express provision of ouster and though its dual conditions must be satisfied strictly before the decision of a question can be barred from the cognizance of a normal jurisdiction, it would be wrong to import into that provision any extraneous or collateral considerations, as for example whether the question involved is simple or complicated. If law provides that a question must be decided by a particular authority to the exclusion of the Civil Courts, that authority cannot throw up its hands in despair and refuse to decide the question on the ground that it involves consideration of intricate problems. Nor, indeed, can the Civil Court displace the jurisdiction of that authority by arrogating to itself the sole power to decide complicated questions. Once the normal presumption arising under Section 9 of the Civil Procedure Code is overborne, there is no scope for limiting the jurisdiction of an exclusive forum to simple and straightforward questions. What must therefore be considered here is whether the two conditions of Section 80 are satisfied.", At para 16 pages 133 and 134

The Full Bench held that a contest regarding the title of a third party has no place in the scheme of the Act. Hence, a question as regards the title of a third party to trust property was held not to be a question incidental to the determination of the main question whether a particular property is the property of the public trust.

35. In K.Shamrao vs. Assistant Charity Commissioner, (2003) 3 SCC 563 : [2003 ALL MR (Cri) 823 (S.C.)] a bench of two learned judges of the Supreme Court while construing the provisions of the Bombay Public Trusts Act, 1950 as applicable to the State of Karnataka, adverted to Sections 79 and 80 and observed that the decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the Court on application or of the High Court in appeal, be final and conclusive. The Supreme Court held that the Assistant Charity Commissioner has the power to render a definitive judgment after taking evidence, having regard to the facts of the case and by the application of the law. The judgment is final unless interfered with in appeal and thereafter considered in appeal before the High Court and "the jurisdiction of the Civil Court has been barred in the matters enquired into and decided by the Assistant Charity Commissioner"., Para 16 page 568 Adverting to the functions of the Assistant Charity Commissioner, the Supreme Court held as follows:

"....the Assistant Charity Commissioner has not only the trappings of a judicial tribunal but also has power to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement. The Assistant Charity Commissioner, therefore, possesses all the attributes of a court. The fact that the Assistant Charity Commissioner has also to perform some administrative functions is not of any relevance for coming to the conclusion that he is not a court, having regard to the provisions of the Act which substantially confer on him the power to give a definite judgment subject to finality in appeal, after hearing all concerned. Functions of the Assistant Charity Commissioner are predominantly adjudicatory."At para 17 page 568

36. In Sahegouda Vs. Ogeppa, (2003) 6 SCC 151 : [2003(3) ALL MR 1193 (S.C.)] the Appellants claimed that they were ancestral Pujaris of the temple and entitled in that capacity to pujariki rights. The cause of action for a suit instituted in the Civil Court was that the Respondents had obstructed the performance of puja in the temple. The Appellants sought a declaration and injunction. The Supreme Court held that the provisions of law ousting the jurisdiction of the Civil Court have to be strictly construed and the onus lies on the party seeking to oust jurisdiction to establish his right to do so. The Supreme Court noticed that the only right claimed by the Appellants was as ancestral pujaris and they neither claimed to be trustees as defined in Section 2(18), nor did they seek a declaration in regard to the existence of the trust or that any particular property was the property of the trust. Those reliefs, it was held, did not fall within the ambit of Sections 19 or 79 of the Act upon which the Deputy or Assistant Charity Commissioner had jurisdiction to hold an enquiry and give a decision. The test which must be applied is evident from the following observations of the Supreme Court:

"In our opinion the decision of the controversies raised in the suit do not at all require adjudication of any such matter which may have to be done by the Assistant Charity Commissioner while exercising his powers under Section 19 of the Act on the application which was pending before him for registration of the Temple and its property as public trust.", At para 12 page 158

37. The provisions of Section 80 of the Bombay Public Trusts Act, 1950, in relation to the State of Gujarat came up for consideration before the Supreme Court in Church of North India vs. Lavajibhai Ratanjibhai., (2005) 10 SCC 760 In that case, the Brethren Church had been registered under the Bombay Public Trusts Act, 1950. By a resolution of the Church, it was affirmed that the Church of North India would be deemed to be a successor of the Brethren Church and the right, title and interest of the former would vest in the latter. The Brethren Church thereupon ceased to exist as a trust. The Plaintiff instituted a suit in the Civil Court on the ground that some of the Defendants had raised a contention that the Brethren Church continued to exist and were obstructing the functioning of the Church of North India, and in particular, worship in Churches. In the suit, a declaration was sought that the erstwhile Church had ceased to exist, that the Church of North India was its successor together with the right, title and interest in respect of its property and injunctive relief was sought against the Defendants who were acting in a manner contrary to the constitution of the Church of North India. While adverting to the provisions of the Bombay Public Trusts Act, 1950, the Supreme Court observed as follows:

"The BPT Act is a special law. It confers jurisdiction upon the Charity Commissioner and other authorities named therein. The statute has been enacted by the state legislature in public interest to safeguard the properties vested in the trusts as also control and management thereof so that the trust property may not be squandered or the object or purport for which a public trust is created may not be defeated by the persons having control..."

The Supreme Court held that the Act is a complete code and provides for the finality and conclusiveness of an order passed by the Charity Commissioner inter alia under Sections 21(2) and 22(3). The case before the Court was not concerned with the creation of any right by the trust in a third party which would otherwise be beyond the jurisdiction of the Charity Commissioner, nor with a dispute as regards absolute title to trust property. The test to be applied was formulated thus :

"With a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted."At para 83 page 788

The Supreme Court further held :

"The civil court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected with the administration or possession of the trust property, the civil court may have jurisdiction. In this case, having regard to the nature of the lis, the jurisdiction of the civil court was clearly barred."

The judgment of the High Court holding that jurisdiction was barred, was upheld.

38. Section 80 of the Bombay Public Trusts Act, 1950 contains an express bar to the jurisdiction of a Civil Court, but that is subject to the satisfaction of dual conditions. The existence of those conditions must be strictly established before an ouster of jurisdiction can result. The correct test in law to apply is whether the controversy which is sought to be raised before the civil court requires an adjudication of a matter or question which has to be decided or dealt with by an officer or authority under the Act while exercising his power under the Act and whether such a decision is made final or conclusive. In determining this issue, the Court has to consider the substance and not merely the form in which the claim before the civil court is made and the underlying object of seeking the real relief. If the question which is raised in the present case in the Originating Summons, is required to be determined or dealt with by an authority under the Act whose decision on such a matter is final and conclusive, the jurisdiction of the Civil Court would have to be held to have been ousted.

39. In holding that the jurisdiction of the Court in the Originating Summons was not barred, the Learned Single Judge held that what is made final and conclusive under the provisions of Section 22(3) are the entries made by the Assistant Charity Commissioner and not the findings on the basis of which those entries are made. This view of the Learned Single Judge, with respect, overlooks that under sub-section (3) of Section 22, the entries which the Deputy or Assistant Charity Commissioner makes have to be in accordance with the findings which require an amendment or deletion of the entries. The findings of the Deputy or Assistant Charity Commissioner constitute the foundation while the entries which he makes are consequential. Section 22(3) makes an amendment of the entries "so made" final and conclusive subject to an amendment on occurrence of a change or cancellation of the entries. The entries made are a consequence of the finding and finality cannot attach to one without the other. To hold otherwise would be to defeat the legislative intent. This principle of law can be regarded as being settled by the judgment of the Supreme Court in Hasan Nurani Malak vs. S.M.Ismail., AIR 1967 SC 1742 The issue before the Supreme Court was whether the Assistant Charity Commissioner appointed under the Bombay Public Trusts Act, 1950 as extended to the area of Vidarbha had jurisdiction to hold an enquiry under Section 19 in spite of a previous finding by the Registrar under the M.P. Public Trusts Act, 1951 that the trust was not a public trust within the meaning of the latter Act. Under the M.P. Act, the Registrar had held an enquiry and came to the conclusion that the trust was not a public trust, but on this finding he did not cause an entry to be made in the Register maintained under the Act. On the reorganization of the States, the Bombay Public Trusts Act, 1950 was extended to the Vidarbha area and an application was filed before the Assistant Charity Commissioner to enquire whether the trust was a public trust. The Appellant unsuccessfully urged before the Assistant Charity Commissioner that he was precluded from holding an enquiry under the Bombay Act as a result of the previous determination. Under the M.P. Act, the Registrar on the completion of his enquiry, was required to record his findings with reasons and to cause entries to be made in the Register in accordance with his findings. Section 7(2) provided that "the entries so made shall, subject to the provisions of this Act and subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive". Under the Act, the remedy of a suit was available to have a finding of the Registrar set aside and on the final decision of the suit, the Registrar was required to correct entries made in the Register in accordance with the decision. The High Court held that under the M.P.Act, finality was not conferred on the finding of the Registrar and that finality attached to an entry made by the Registrar in the Register of the Public Trust. Moreover, the High Court had held that where the finding was in the negative, it was not incumbent on the Registrar to make an entry. Hence, the High Court held that no finality should be given to the finding of the Registrar that the trust was not a public trust. While reversing the finding of the High Court, the Supreme Court held that the Registrar was obliged to make an entry in the register whether his finding was in the affirmative or in the negative. The Supreme Court held that though it is an entry which is made which has been given finality, a remedy was made available in the form of a suit against the finding of the Registrar and where such a finding is set aside, the Registrar has to correct the entry made in the register in accordance with his finding. The Supreme Court held that the cause of action of such a suit is thus "the finding and not the entry which is merely consequential".

40. Under Section 22(3) if the Deputy or Assistant Charity Commissioner is satisfied after enquiry that a change has occurred in any of the entries recorded in the register, he is required to record a finding together with the reasons therefor. An appeal against such a finding is provided to the Charity Commissioner. The entries in the register have to be amended by the Deputy or Assistant Charity Commissioner in accordance with the finding and where an appeal or application has been filed against the finding in accordance with the final decision therein. The amendments in the entries so made are final and conclusive, subject to a further amendment on the occurrence of a change or any cancellation of an entry. The entries which the Deputy or Assistant Charity Commissioner makes have, therefore, to be in accordance with the finding which he arrives at in the course of the enquiry. Finality attaches to the entries made in the register. The finality is subject to an appeal against the findings and upon a final decision of the competent authority on an appeal or application, the entries in the register would have to be brought in conformity with those findings. The basic underlying principle is that though the finality which is prescribed is in respect of the entries made in the register, the entries are only consequential to the findings of the competent authority. If the submission of the Plaintiff were to be accepted, that would lead to an incongruous situation in which the bar under Section 80 to the entertainment of a question by the Civil Court would be attracted in respect of the entries, but not as regards the findings on the basis of which the entries were made. Such a construction cannot be adopted. As the Supreme Court has noted in the Church of North India, the Bombay Public Trusts Act, 1950 is a special law which confers jurisdiction upon the Charity Commissioner and other authorities named therein and the provisions of the Act and the scheme thereof "leave no manner of doubt that the Act is a complete code in itself".(2005) 10 SCC 760 at para 82 page 788

41. The Learned Single Judge held that the Deputy or Assistant Charity Commissioner cannot under the act entertain an application for interpreting a deed of trust simpliciter and hence an Originating Summons would not be barred under Section 80 of the Bombay Public Trusts Act, 1950. With the greatest respect, this approach misses the essence of the bar under Section 80. Under the provision, the bar is on a civil court deciding or dealing with any question which under the Act has to be decided or dealt with by an officer or authority and whose decision is made final and conclusive. When the Assistant Charity Commissioner entertains a change report under Section 22, the question which he has to deal with or decide in the course of the enquiry and in respect of which finality attaches is excluded from the jurisdiction of the Civil Court under Section 80. To hold that the Assistant Charity Commissioner cannot entertain an application in the nature of an Originating Summons for construction of a deed of trust is to beg the question. The bar under Section 80 attaches to a civil court dealing with or deciding a question which the Assistant Charity Commissioner is required to decide or deal with, and with finality. Once the two requirements of Section 80 are fulfilled, the bar is attracted. We are hence of the view that on the construction of Section 80, the Learned Single Judge applied an erroneous test.

The Letters Patent and the High Court Rules:

42. Section 122 of the Code of Civil Procedure, 1908, empowers the High Courts to make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence. These rules may annul, alter or add to the rules contained in the First Schedule to the Code. Section 126 provides that the rules made under the foregoing provisions are subject to the previous approval of the State Government. Section 128(1) provides that such rules shall not be inconsistent with the provisions in the body of the Code, but subject thereto, may provide for any matters relating to the procedure of Civil Courts. Among other things clause (g) of sub-section (2) of Section 128 stipulates that the rules may provide for the procedure by way of an Originating Summons. Section 129 provides as follows:

"129 Power of High Courts to make rules as to their original civil procedure - Notwithstanding anything contained in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it, to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code."

Section 129 begins with a non-obstante clause. Section 129 invests Chartered High Courts with the power to make rules regulating their own procedure. This procedure may be inconsistent with the C.P.C., but the rules must be consistent with the Letters Patent which established the High Court. Apart from the non-obstante clause with which the section begins, the provision ends with the stipulation that "nothing herein contained shall affect the validity of any such rules in force at the commencement of the Code". Clause 37 of the Letters Patent of the Chartered High Courts at Calcutta, Bombay and Madras is identically worded and allows those High Courts to make rules and orders regulating proceedings in civil cases. Clause 37 provides as follows:

"37. And we do further ordain that it shall be lawful for the said High Court of Judicature . from time to time, to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty, Testamentary, Intestate and Matrimonial Jurisdictions, respectively: Provided that the said High Court shall be guided in making such rules and orders as far as possible, by the provisions of the Code of Civil Procedure, being an Act passed by the Governor-General in Council, and being Act No.VIII of 1859, and the provisions of any law which has been made amending or altering the same, by competent legislative authority for India."

43. In Iridium India Telecom Ltd. vs. Motorola Inc., AIR 2005 SC 514 : [2005(5) ALL MR 191 (S.C.)] the Supreme Court upheld the view of this Court that the amended provisions of Order VIII Rule 1 of the CPC would not apply to a suit on the Original Side of the High Court and that such a suit would be governed by the Original Side Rules. The Supreme Court noted that the legislature recognized the special role assigned to the Chartered High Courts and exempted them from the application of several provisions of the Code in the exercise of their ordinary and extra-ordinary civil jurisdiction for the simple reason that those jurisdictions were governed by the procedure prescribed by the rules made in exercise of the powers conferred by Clause 37 of the Letters Patent on the Chartered High Courts. The Supreme Court held that the object of inserting Section 129 in its present form in the C.P.C. was exactly the purpose for which it was inserted in the C.P.C. of 1882 by an Amending Act of 1895, namely:

".... "to recognize the practical expediency of leaving such High Courts some latitude in the direction of adapting the provisions of the ordinary law to meet their requirements", and that further, "it had been found by experience that these provisions were not in all respects convenient in the case of original proceedings in those Courts". The amendment, therefore, became necessary "to bring the Code into perfect harmony with the provisions of the Letters Patent and to enable the High Courts referred to to regulate the exercise of their original civil jurisdiction accordingly.

It appears to us that this was the real reason why a distinction was drawn between the proceedings in original jurisdiction before the Chartered High Courts and those in other Courts. For historical reasons this distinction was maintained right from the time the Letters Patent was issued, and has not been disturbed by the Code of Civil Procedure, 1908, despite the amendments made in the CPC from 1976 to 2002."

The Supreme Court held that the legislature has made a distinction between the proceedings in other Civil Courts and proceedings on the Original Side of Chartered High Courts, a distinction which has continued to be unaffected right up to the last amendment of the C.P.C. The judgment of the Supreme Court in Iridium also holds that the Letters Patent and the rules made thereunder which are recognized and specifically protected by Section 129 are not relegated to a subordinate legislative status. The Supreme Court held that the Letters Patent is a specific law under which the High Court derives its powers and cannot be excluded by implication. In the event that there is a conflict between the special law and the general law, the special law will always prevail. The Letters Patent is a special law of the concerned High Court whereas the C.P.C. is the general law applicable to all Courts.

44. Mr.J.P.Cama, Learned Senior Counsel for the Plaintiff submitted that the procedure in regard to an Originating Summons has been in existence for over sixty years and the principle of starc decisis should require that it continue. We must clarify at the outset that what the Court is called upon to decide is whether this particular Originating Summons attracts the bar under Section 80 of the Bombay Public Trusts Act, 1950. The canvass upon which we enter is what is necessary for the decision of this case.

45. The same view as taken in Iridium by the Supreme Court was adopted in the earlier judgment of the Supreme Court in Vinita M. Khanolkar vs. Pragna M. Pai, JT 1997(9) SC 490 : [1998(1) ALL MR 459 (S.C.)] where it was held that the power flowing from Clause 15 of the Letters Patent which provides an intra court appeal from an order of a Learned Single Judge in the exercise of the original jurisdiction would not be excluded unless the statutory enactment expressly excludes appeals under the Letters Patent. In Sharda Devi vs. State of Bihar, AIR 2002 SC 1357 : [2003(2) ALL MR 319 (S.C.)] while dealing with the maintainability of an appeal against an order of a Learned Single Judge in appeal under Section 54 of the Land Acquisition Act, 1894 the Supreme Court held that the powers given to the High Court under the Letters Patent "are akin to the constitutional powers of the High Court". These observations in Sharda Devi's case were explained in a subsequent judgment of a Constitution Bench of the Supreme Court in P.S.Sathappan vs. Andhra Bank Ltd., (2004) 11 SCC 672 as merely laying down that the powers given to the High Court are powers with which that High Court is constituted. The Supreme Court held that these observations do not put the Letters Patent on par with the Constitution.

46. The rules framed by this Court to govern proceedings on the Original Side are relatable to the power vested in the Chartered High Court under Clause 37 of the Letters Patent. Section 129 of the Code of Civil Procedure has empowered the High Court to frame rules to regulate its own procedure in the exercise of its Original Civil Jurisdiction notwithstanding anything in the Code, but in a manner that such rules are not inconsistent with the Letters Patent. In relation to the Code of Civil Procedure 1908 which constitutes a general law providing the procedure applicable to all Civil Courts, the Letters Patent constitutes a special law under which the High Court derives its powers. As a special law, the Letters Patent would prevail over a general law which the CPC is. Section 129 recognises this position by the non-obstante provision by which it is prefaced.

47. The rules which have been framed in relation to an Originating Summons in Chapter XVII of the Original Side Rules cover diverse and broad categories. Under Rule 238 diverse categories of persons may apply before the Judge in chambers on an Originating Summons. These persons are : (i) the executors or administrators of a deceased person; (ii) the trustees under any deed or instrument; and (iii) any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir or legal representative or as a beneficiary under the trusts of any deed or instrument, or claiming by assignment or otherwise under any such creditor or other person as aforesaid. Clauses (a) to (g) of Rule 238 specify the nature of the determination that can be sought before the Judge in chambers in respect of the questions or matters described therein. Rule 238 covers a determination in respect of an estate or trust of the questions and matters referred to in clauses (a) to (g). A comparison of the clauses of Rule 238 with the provisions of the Bombay Public Trusts Act, 1950 would show that the Act has made comprehensive provisions in respect thereof. For instance, Rule 238(c) covers the furnishing of any particular accounts by the trustees and the vouching of such accounts. Clauses (b) and (c) of Section 37(1) confer an express power on the Charity Commissioner, the Deputy or Assistant Charity Commissioner and any officer authorised to call for and inspect any book of accounts and to call for any return, statement, account or report from the trustees. Section 41A empowers the Charity Commissioner to issue directions to any trustee of a public trust to ensure that the trust is properly administered and the income is properly accounted for. Clause (d) covers the payment into Court of any moneys in the hands of trustees. Apart from Section 41A, which has been noted above, Section 41E confers wide powers on the Charity Commissioner and the other authorities to prevent the waste, damage or improper alienation of trust property. Clause (f) of Rule 238 provides for the approval of any sale, purchase, compromise or other transaction. Section 36 of the Act provides for the previous sanction of the Charity Commissioner before any sale, exchange or gift of immovable property or a lease for a stipulated period can be entered into. This comparison would indicate that a comprehensive machinery has been provided in the Bombay Public Trusts Act, 1950 for the regulation of public trusts. The Bombay Public Trusts Act 1950, as the Supreme Court has held in the Church of North India is a self contained code and is a special law enacted by the State legislature in public interest to provide for the proper administration of public and religious trusts in the State. The Act provides, as the Supreme Court held, a complete machinery for a person interested in a trust to put forward his claim before the Charity Commissioner who is vested with the power to conduct an enquiry and to render an adjudication. The bar of jurisdiction under Section 80 is on every civil Court exercising jurisdiction to decide or deal with any question which under the Act has to be decided or dealt with by an officer or an authority under the Act and in respect of which his decision or order has been made final and conclusive. The rules on the Original Side regulate proceedings in civil cases brought before the High Court and governs the procedure which is to be followed on the invocation of the jurisdiction. The Bombay Public Trusts Act 1950 is a special law enacted by the State legislature to provide a comprehensive machinery to deal with the administration of public religious and charitable trusts in the State. The explicit bar in Section 80 would consequently apply to a suit on the Original Side in which the questions to be decided fall within the ambit of the bar created by the statute. The bar under Section 80 would extend to the procedure of an Originating Summons on the Original Side. Where a question is required to be decided or dealt with by an officer or authority under the Bombay Public Trusts Act 1950 and in respect of which his determination has been made final and conclusive, the procedure envisaged on an Originating Summons would be subject to the bar created by Section 80 of the Bombay Public Trusts Act 1950. The bar under Section 80 extends to every civil court.

The question raised in the Originating Summons:

48. Several suits or proceedings have been instituted by the Plaintiff and/or the Second Defendant and their group in which the interpretation of diverse clauses of the Deed of Trust - as in the Originating Summons - was placed in issue:

(i) The Plaintiff had instituted Short Cause Suit No.1997 of 2006 before the City Civil Court to inter alia challenge notices dated 27 April 2006 and resolutions adopted at a meeting held on 29 April 2006 and all purported actions pursuant thereto. The suit was dismissed by the City Civil Court on 21/24 September 2007. The Trial Judge in the City Civil Court had held that the bar under Section 80 of the Bombay Public Trusts Act, 1950 was not attracted. While the contesting Defendants had filed first appeals, cross objections were also filed on the question of jurisdiction. By an order dated 27 February 2009, the first appeals and cross objections were disposed of by this Court and the suit was directed to stand dismissed for want of jurisdiction. The relevant part of the order of the Court reads as follows:

"3. During the course of hearing, counsel appearing for the Appellants had sought an adjournment of the proceedings yesterday in order to consider the position of the Appellants specifically with reference to the objection on the ground of jurisdiction. All the learned counsel appearing for the Appellants have informed the Court today that on a considered view of the legal position and particularly having regard to the judgment of the Supreme Court in Church of North India (supra) the Appellants submit to the correctness of the cross objection, in the facts of the suit out of which the First Appeals arise in this case. Having regard to the concession which has been made on behalf of the Appellants, which in the view of the Court is consistent with the law laid down by th e Supreme Court in Church of North India (supra), the judgment of the Learned Trial Judge has been rendered without jurisdiction. The findings which have been tendered by the Learned Trial Judge on the merits of the case consequently do not survive. This position is not in dispute between the learned counsel appearing on behalf of all the parties before the Court. It is agreed and understood by the learned counsel that the suit would stand dismissed as being without jurisdiction. There shall be an order in these terms."

(emphasis supplied)

The Eleventh Defendant to those proceedings had instituted a suit before the City Civil Court, B.C.C. Suit 444 of 2006 and it was agreed before this Court that the suit shall be withdrawn forthwith "since the issues which arise before the trial Court in that suit will fall for determination by the Assistant Charity Commissioner in the course of the adjudication of the change report". Mr.I.M.Chagla, Learned Senior Counsel stated before the Court that the proceedings in respect of some of the change reports are now ripe for cross examination on the affidavit of evidence.

(ii) Another suit instituted by the Second Defendant, S.C. Suit No. 2444 of 2006. who is supporting the Plaintiff was dismissed as withdrawn by the City Civil Court on 6 March 2009.

(iii) The Plaintiff had filed an application before the Joint Charity Commissioner, Application No.17 of 2006. under Section 41-D of the Bombay Public Trusts Act 1950 which was disposed of on 25 September 2009. A petition challenging the order of the Joint Charity Commissioner was dismissed on 2 March 2010 and a Letters Patent Appeal was dismissed on 1 December 2010. A Special Leave Petition is pending.

(iv) The Plaintiff has also instituted another suit before the City Civil Court, S.C. Suit No.1690 of 2010. seeking a declaration that it is only the permanent trustees who have the right to appoint permanent trustees under Clause 17 of the deed of trust and challenging a resolution passed in a meeting on 19 August 2010. The suit is stated to be pending in the City Civil Court. An ad-interim application was rejected in the suit on 27 August 2010 and an Appeal from order was dismissed on 20 January 2011.

(v) A suit was instituted by the Second, Twelfth and Fourteenth Defendants in the City Civil Court to challenge a notice dated 16 January 2007 and for injunctive relief against Defendants 1 to 7, 9 to 10. The suit was dismissed on 25 February 2009.

(vi) The Plaintiff instituted a Short Cause Suit, S.C.Suit 1795 of 2008 before the City Civil Court inter alia seeking a declaration that (i) Vijay Mehta, the First Defendant to the suit, was not entitled to exercise any power in regard to the appointment of trustees under Clauses 17 and 20 of the Deed of Trust; (ii) Vijay Mehta could appoint not more than five trustees under clause 20; (iii) The appointment of the Second and Third Defendants to the suit in excess of the right conferred upon Vijay Mehta under clause 20, was unlawful. The suit has been dismissed by the City Civil Court on 16 November 2009 having regard to the fact that in view of the express provisions made in the Bombay Public Trusts Act, 1950 regarding change reports and enquiries, the jurisdiction of the Civil Court was barred by Section 80.

49. The matters which form the subject of the Originating Summons have specifically been placed in issue in several proceedings instituted on change reports submitted to the Charity Commissioner which are pending adjudication. A chart has been tendered before this Court by Mr. I.M. Chagla, learned senior counsel appearing on behalf of the Appellant in Appeal (Lodg.) No.253 of 2012 containing a list of proceedings where the interpretation of clauses 11(h), 11(j), 11(k) and of clauses 14,16, 17 and 20 of the trust deed has arisen. The correctness of the chart has not been disputed by Counsel for the Plaintiff. The chart would indicate that in as many as six proceedings change reports are pending before the Assistant Charity Commissioner for taking on record the continuation / extension of Defendants 5, 6, 7, 8, 9 and 11 as permanent trustees where the provisions of clause 11(j) of the Deed of Trust are directly in issue in those change reports. The interpretation of Clause 20, is raised in about 7 change reports Change Report Nos. 3899/2004, 314/2007, 1411/2007, 1408/2007, 2201/2008, 2202/2008, ../2011. which are pending. Similarly, the interpretation of clause 14 of the deed of trust is specifically in issue in several change reports, Change Report Nos. 403/2006, 1564/2006, 1565/2006, 2205/2008, .../2010, 3504/2010, 3505/2010 4836/2010, 1991/2011, Revision 36 of 2009. which are pending before the Assistant Charity Commissioner.

50. In every one of the change reports which have been filed before the Assistant Charity Commissioner, the interpretation of the relevant provisions of the deed of trust is directly in issue and is a question which is required to be decided or dealt with by him in pursuance of the enquiry under Section 22(3). The mode of succession to the office of trustees under the deed of trust and the validity of the appointments made is in issue. These are questions which have to be dealt with and decided by the Assistant Charity Commissioner in the course of his enquiry in the change reports. The entries which the Assistant Charity Commissioner would make in consequence of his findings on whether or not a change has taken place in the office of trustees are made final and conclusive. An overall reading of the plaint would also make it abundantly clear, that what the Plaintiff seeks is not - as suggested by Counsel - a pure or abstract question of interpretation of the clauses of the Deed of Trust. There are live disputes between the parties - disputes over the appointment of trustees, the mode of succession and the validity of meetings - which are the subject matter of change reports, which are pending. For the purpose of determining jurisdiction, it is evident from a bare reading of the averments contained in the plaint that the change reports are pending. The Originating Summons does not raise only questions of interpretation. Matters which are pending before the Assistant Charity Commissioner are sought to be brought before this Court in the guise of an Originating Summons. In this view of the matter, the jurisdiction on an Originating Summons under Rule 238 would attract the bar under Section 80 of the Bombay Public Trust Act 1950 in respect of the questions which are required to be decided or dealt with by the Assistant Charity Commissioner and to which finality attaches.

Exercise of discretion

51. Rule 246 of the High Court (Original Side) Rules makes it clear that the Court or the judge in chambers shall not be bound to determine any such question of construction if in its or his opinion it ought not to be determined on an Originating Summons. The Learned Single Judge has held that the questions sought to be raised cannot appropriately be addressed in an Originating Summons and in the circumstances, came to the conclusion that this was not a fit and proper case for the exercise of the discretion. Since we have come to the conclusion that the bar under Section 80 was attracted, the question as to whether discretion should or should not be exercised to entertain the Originating Summons would not survive. However, since the Learned Single Judge has expressed a view on this and for completeness, we are dealing also with that aspect.

52. The view which has been taken on this aspect by the learned Single judge commends itself, with respect, as a preeminently justifiable view. Firstly, as the discussion above will evidence a large number of matters arising out of change reports submitted under Section 22 are pending adjudication before the authorized officer involving the very issues which are sought to be raised in these proceedings. Secondly, the interpretation of the deed of trust is only one aspect of the matters in issue between the parties. The Deed of trust was executed on 5 July 1978. Kirtilal was appointed as a permanent trustee. In July 1990, Vijay Mehta was appointed as a trustee (originally as a term trustee and thereafter as permanent trustee). Kirtilal died in 1993. The Second Defendant, Kishore Mehta was removed as a trustee in 2004 and the Court has been informed that in or about April 2005 the first proceeding was initiated upon his removal. The conduct of the trustees and the manner of administering the trust, the manner in which the terms of the deed of trust were construed would all assume relevance.

53. In paragraph 17 of the Plaint, it has been stated that Vijay Mehta appointed the Fifth Defendant on 15 January 2007 though he had already appointed five trustees earlier. All the five persons appointed by him were already acting as trustees and it is therefore sought to be submitted that he could not have appointed the Fifth Defendant as a sixth appointee by exercising his power under Clause 20. Why the Plaintiff waited until 2011 when the Originating Summons was taken out is a matter which would have to be explained in evidence. As regards the disqualification of the Second Defendant the case of the Plaintiff is that as a matter of record he did obtain the leave of the Board of trustees. This is a question of fact on which evidence would be necessary. In paragraph 35 of the Plaint, the Plaintiff has specifically placed in issue the manner in which the trust was administered in relation to the appointment of trustees from its inception, till the appointment of Defendant No.11 and it has been alleged that all trustees were appointed under Clauses 17 or 20 of the trust deed in accordance with the wishes of the settler. Any resolution of the dispute between the parties cannot hence turn on a pure question of interpretation. Other factual issues including whether resolutions were passed at a duly constituted meeting and the persons who were present when the resolutions were passed are matters on which evidence would have to be adduced.

54. Clause 20 of the Deed of trust provides that during his life time Kirtilal would have the power to appoint from time to time and to reappoint and continue the appointment of not more than five trustees. After his death his son Vijay was vested with the "same power to appoint not less than five trustees". The Plaintiff submits that the expression "not less than five trustees" should be construed to mean not more than five trustees having regard to the use of the words "the same power". This would involve an exercise in rewriting the words of the deed of trust, something which in any event would not be permissible for the Court in an Originating Summons.

55. Where the words of an instrument are ambiguous, evidence as regards the conduct of parties is admissible to construe the manner in which parties construed the language of the instrument. Mr.Justice Patanjali Shastri (as the Learned Judge then was) speaking for a Constitution Bench of the Supreme Court in Abdulla Ahmed v. Animendra Kissen Mitter, AIR 1950 SC 15. formulated the principle in the following words:

"The evidence of such conduct is relevant in this case because, as pointed out by Viscount Simon, L.C., in the case already referred to, the phrase "finding a purchaser" is itself not without ambiguity. Here the phrase is "securing a purchaser". This phrase similarly is not without ambiguity. The evidence of conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. (Vide para 343 of Hailsham Edn. of Halsbury, Vol. 10, p. 274)." at para 27.

56. In The Godhra Electricity Co. Ltd. v. The State of Gujarat AIR 1975 SC 32 the principle was reiterated in the felicitous words of Mr.Justice K.K.Mathew :

"A word or a phrase, is not always crystal clear. When both parties subsequently say that by the word or phrase which, in the context, is ambiguous, they meant this, it only supplies a glossary as to the meaning of the word or phrase. After all, the inquiry is as to, what the intention of the parties was from the language used. And, why is it that parties cannot clear the latent ambiguity in the language by a subsequent interpreting statement? If the meaning of the word or phrase or sentence is clear, extrinsic evidence is not admissible. It is only when there is latent ambiguity that extrinsic evidence in the shape of interpreting statement in which both parties have concurred should be admissible. The parties themselves might not have been clear as to the meaning of the word or phrase when they entered into the contract. Unanticipated situations might arise or come into the contemplation of the parties subsequently which would sharpen their focus and any statement by them which would illuminate the darkness arising out of the ambiguity of the language should not be shut out. In the case of an ambiguous instrument, there is no reason why subsequent interpreting statement should be inadmissible."at para 17 page 37.

57. In Delta International Ltd. v. Shyam Sundar Ganeriwalla, (1999) 4 SCC 545 : [1999(2) ALL MR 576 (S.C.)]. the same principle was applied in determining as to whether a document created a lease or a licence:

"The intention of the parties is to be gathered from the document itself. Mainly, the intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that the document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties." para 16 page 559.

58. Consequently, where the terms of an instrument are ambiguous as in the present case, the conduct of the parties assumes relevance for assessing the manner in which they construed the document. The disputes between the parties in the present case cannot be resolved purely on the basis of an interpretation of the trust deed. Added to this, we may also note the submission of Mr. Mahesh Jethmalani in support of the submissions of the Plaintiff that there was an oral deed of trust which predated the execution of the trust deed on 5 July 1978. On this basis, learned counsel sought to urge that the disqualification, if any, in Clause 14 of the deed of trust which adverts to "the trustees hereby constituted" would not apply to the three permanent trustees who - according to the submission - had been appointed prior to the constitution of the trust by the written deed of instrument. This submission overlooks the pleadings of the Plaintiff in paragraph 4 of the Plaint which is that the Plaintiff, the Second Defendant and the Third Defendant were the first trustees of the trust under Clause 16 of the trust deed. But quite apart from that, we are of the view that this submission again is in itself indicator of the fact that the procedure of an Originating Summons would manifestly be inappropriate for the resolution of the disputes between the parties.

59. An application under Section 41D of the Bombay Public Trusts Act, 1950 was filed by the Plaintiff for the removal of nine trustees. Application No. 17 of 2006 The application was dismissed on 25 September 2009 by the Joint Charity Commissioner, save and except in respect of Vijay Mehta, who was dismissed as a trustee. In the course of the judgment, the Joint Charity Commissioner held that the delegation of power by a trustee was permissible in law if permitted by the Deed of Trust and, such a delegation is permissible in law under the Trust Deed in question. The dismissal of the application was questioned before the Learned Single Judge of this Court in a Writ Petition, which was dismissed on 2 March 2010. Writ Petition 9501 of 2009 Vijay Mehta died during the pendency of the proceedings before the Learned Single Judge of this Court. The order of the Learned Single Judge was confirmed by a Division Bench on 1 December 2010. Letters Patent Appeal 268 of 2010. On the basis of this determination by the Charity Commissioner, it has been sought to be urged in defence to the Originating Summons that a plea of issue of estoppel would arise which cannot appropriately be adjudged in an Originating Summons. In the view which has been taken by us, it is not necessary to enter any conclusive finding on the point of issue estoppel. We have earlier noted the judgment of a Division Bench of the Calcutta High Court that on questions of estoppel which do not raise pure questions of law, an Originating Summons is not an appropriate remedy (Gokul Chand De vs. Gopi Nath Dey (supra). Independently of this aspect, we have come to the conclusion that the Learned Single Judge has correctly exercised his discretion in not entertaining the Originating Summons.

60. In the view which we have taken, we have come to the conclusion that (i) The bar under the provisions of Section 80 of the Bombay Public Trusts Act 1950 was attracted and the Learned Single Judge was in error in holding to the contrary; (ii) In any event this is not a fit and proper case for the entertainment of an Originating Summons and the Learned Single Judge was justified in declining to exercise his discretion. Before concluding we may also note that before the learned Single Judge, the provisions of Section 50 of the Bombay Public Trusts Act 1950 were sought to be pressed in aid in defence to the maintainability of the Originating Summons. Section 50, it may be noted, applies to a suit of a specified nature in any case which attracts the provisions of Clauses (i) to (iv) thereof. Section 50 requires the consent of the Charity Commissioner to institute a suit for reliefs of a specified nature. The Learned Single judge was, in our view, correct in holding that Section 50 was not attracted to the facts of the present case since the Originating Summons did not meet the description as referred to in Section 50.

61. One of the objections urged before the Learned Single Judge to the maintainability of the Originating Summons was that under Clause 11(v) of the Deed of Trust, the trustees have the power to decide all questions arising in the administration of the trust including all questions relating to the interpretation of the trust deed or any clause thereof. A bar of jurisdiction cannot be created by a contract between parties or an instrument which they create. The Learned Single Judge held that clause 11(v) may be relevant to the exercise of discretion but not to the existence of jurisdiction. This issue need not detain us any further and we have referred to it for completeness.

Limitation:

62. The schedule to the Limitation Act, 1963 prescribes period of limitation. The first division relates to suits; the second division relates to appeals, while the third division relates to applications. Part-I of the third division which contains Articles 118 to 136 deals with applications in specified cases. Part-II of the third division relates to other applications. Article 113 and 137 are as follows :

“FIRST DIVISION - SUITS PART X - SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD
113. Any suit for which no period of limitation is provided elsewhere in this Schedule.	Three years	When the right to sue accrues.
THIRD DIVISION - APPLICATIONS “PART II - OTHER APPLICATIONS

-137 Any other application for which no period of limitation is provided elsewhere in this division.”

Three years

When the right to apply accrues.

63. In the present case, it has been averred in paragraph 55 of the Plaint that "no part of (the) cause of action in the present suit is barred by the law of limitation". The submission which was urged before the Learned Single Judge was that the Plaintiff had, more than three years prior to the filing of the Originating Summons, disputed the interpretation of the same clauses of which interpretation is now sought and the contesting Defendants had acted on the basis of the disputed interpretation more than three years prior to the filing of the Originating Summons.

64. The Learned Single Judge recorded in paragraph 58 of the judgment that the Plaintiff agreed that except Clause 11(j), the interpretation of the clauses of the Trust Deed by the contesting Defendants had been disputed more than three years prior to the filing of the Originating Summons. On behalf of the Trust reliance was placed on the affidavit of evidence dated 8 June 2007 of the First Plaintiff in Short Cause Suit 1997 of 2006 to submit that the interpretation of Clause 11(j) by the contesting Defendants had also been disputed. The Learned Single Judge noted that "by contending that the permanent trustees can be appointed only by permanent trustees under Clause 17, the Plaintiffs had indeed impliedly contended that the power under Clause 11(j) is not available for the appointment of permanent trustees." Consequently, the Learned Single Judge proceeded on the basis that the question of interpretation of the said clauses had fallen for consideration and was disputed between the parties more than three years before the filing of the Originating Summons.

65. The Learned Single Judge extracted the provision of Article 113 of the Schedule to the Limitation Act, 1963 which governs a suit for which no period of limitation is provided elsewhere and for which the period of limitation of three years commences when the right to sue accrues. While extracting Article 137, the judgment of the Learned Single Judge contains an inadvertent error, in that, the period from which limitation begins to run is described as "when the right to sue accrues". Actually limitation under Article 137 commences when the right to apply accrues. The Learned Single Judge held that in an Originating Summons, the question of a right to sue does not arise since there is no lis between the parties and the right under Rule 238 to seek an interpretation is a continuing right.

66. In Kerala State Electricity Board vs. P.T.Kunhaliumma, AIR 1977 SC 282 the Supreme Court while interpreting Article 137 of the Schedule to the Limitation Act, 1963 held that applications contemplated by the provision are not applications confined to the Code of Civil Procedure, 1908, and the words "any other applications" in Article 137 cannot be said on the principle of ejusden generis to be applications under the Code of Civil Procedure, 1908, other than those mentioned in Part-I of the third division. Counsel for the Plaintiff laid emphasis on the observations in the judgment that any other application under Article 137 would be a petition or any application under any Act, in order to submit that an application under Rule 238 of the Original Side Rules which are framed under Clause 37 of the Letters Patent is not an application under an Act. In the decision in Addl. Spl. Land Acquisition Officer vs. Thakoredas, (1997) 11 SCC 412 the Supreme Court has interpreted the earlier judgment.

67. In the present case, the Learned Single Judge has proceeded on the hypothesis that the Originating Summons taken out by the Plaintiff was for interpretation of the Deed of Trust. It was on that hypothesis that the Learned Single Judge came to the conclusion that the bar under Section 80 would not apply in view of his finding that the Assistant Charity Commissioner does not have the power to interpret a Deed of Trust simpliciter. The same reasoning has been extended by the Learned Single Judge to the issue of limitation while holding that a pure question of interpretation does not involve a lis and there being no accrual of the right to sue, limitation would not be attracted. We have, in the earlier part of this judgment, come to the conclusion that the Originating Summons in the present case, does not raise a pure issue of interpretation. The real object and purpose of the Originating Summons was to bring before this Court for adjudication, matters arising before the Assistant Charity Commissioner in change reports in which the interpretation of the Deed of Trust is directly in question. There are live disputes between the parties which are pending before the Assistant Charity Commissioner, some even at an advanced stage where the affidavit of evidence has been filed and cross examination is to take place. Having regard to this position, it would have been necessary for this Court, if it were to come to the conclusion that the bar under Section 80 was not to apply to direct a fresh consideration of the entire issue of limitation by the Learned Single Judge. Since we have come to the conclusion that the Originating Summons is barred by the provisions of Section 80 of the Bombay Public Trusts Act, 1950, it is not necessary so to do since the Originating Summons is liable to be dismissed in view of the bar of jurisdiction. After having considered the submissions on the issue of limitation, we are of the view that it would not be appropriate for this Court to render a final or conclusive determination on that aspect, in view of the finding on the absence of jurisdiction due to the bar under Section 80.

68. Consequently and for the reasons aforesaid, Appeal (Lodg.) 253 of 2012 shall have to be allowed and is accordingly allowed in view of our finding that the Originating Summons was barred by Section 80 of the Bombay Public Trusts Act 1950. Appeal (Lodg.) No.234 of 2012 shall accordingly stand dismissed.

69. In the circumstances of the case, there shall be no order as to costs.

Appeal dismissed.