DAGDU KHOMANE AND ANOTHER versus EKNATH BHIKU YADAV & ORS. on 18 September 2019

390

SUPREME COURT REPORTS

[2019] 13 S.C.R.

AJANARDAN DAGDU KHOMANE AND ANOTHER

v.

EKNATH BHIKU YADAV & ORS.

(Civil Appeal No. 2607 of 2013)

BSEPTEMBER 18, 2019

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Bombay Tenancy and Agricultural Lands Act, 1948: ss. 88Band 32 – Exemption from certain provisions to land of localauthorities, universities and trusts – On facts, land belonging toCthe temple let out to respondents – On 1.04.1957, Tillers’ Day therespondents-tenants in possession of the land became deemedpurchasers – On 08.08.1984, the temple trust was registered afternecessary inquiry – Thereafter, issuance of Exemption Certificateby the Collector in terms of s. 88B in favour of the Trust,Dnotwithstanding the fact that the property belonged to “an institutionof public religious worship” – Writ petition challenging theExemption Certificate – Quashed by the High Court – On appeal,held: Section 88 B exempts the land being the property of a Trust,for inter alia public religious worship and/or educational and/orsocial purpose from the vesting provisions – Trust, being a publicEtrust, was rightly registered on 8.8.1984, after due enquiry –Registration is prospective, w.e.f. 8.8.1984 – Respondents becamedeemed purchasers on Tillers’ Day-1.4.1957 – Right u/s. 32 accruedto the respondents on that day and it cannot be divested of suchright upon subsequent registration of the Trust – Judgment passedFby the High Court upheld.

Dismissing the appeal, the Court

HELD : 1.1 Section 88B of the Bombay Tenancy andAgricultural Lands Act, 1948 provides for exemption of land beingthe property of a Trust, for inter alia public religious worship and/Gor educational and/or social purpose from the vesting provisions.[Para 23] [399-F]

1.2 The Bombay Public Trusts Act is intended to regulatethe administration of public religious and charitable trusts in the H

erstwhile State of Bombay, now the States of Maharashtra andGujarat, creates for the first time a unified special organization todeal with charity matters. Trusts, long in existence, came to beregulated by the Public Trusts Act. The Mahants, pujaris etc.who administer properties of the deity as trustees, were broughtwithin the ambit of the Public Trusts Act. [Para 28–30] [400-E-H;401-A]

1.3 In view of the definition of ‘Public Trust’ in the PublicTrusts Act, which also includes constructive trust either for apublic religious or charitable purpose, the absence of a deed oftrust would not make any difference to the position of the Trustas a “public trust”. [Para 32] [401-C-D]

1.4 A constructive trust arises by operation of law, withoutregard to the intention of the parties to create a trust. It does notrequire a deed signifying the institution of trust. Under aconstructive trust, the trust arises by operation of law as fromthe date of the circumstances which give rise to it. The functionof the court is only to declare that such a trust has arisen in thepast. Constructive trust can arise over a wide range of situations.[Para 33–34] [401-E-F]

1.5 Section 90 of the Trusts Act states that if there is aperson in a fiduciary relation to another, he cannot take advantageof that position so as to gain something exclusively for himself,which he otherwise would not have obtained, but for the positionwhich he held. Section 94 of the Trusts Act, 1882 has allowed thecreation of a constructive trust when situations went beyond theconfines of the Act. Section 94 has later been repealed by theBenami Transactions Prohibitions Act, 1988. The repeal ofSection 94 of the Act does not put any fetter in declaring a trust,even if the situation falls outside the purview of the Act. Itsjurisdiction can be derived from Section 151 of CPC and Section88 of the Indian Trusts Act. [Para 36, 37, 39] [402-E-F; 403-B]

1.6 There can be no doubt that the Trust was all along apublic trust within the meaning of Section 2(13) of the BombayPublic Trusts Act. The Trust has rightly been registered underthe Public Trusts Act, after due enquiry. However, all public trustsare not entitled, as of right, to the exemption under Section 88B

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Aof the 1948 Act. The said section only applies to lands which areproperty of a trust inter alia for educational purpose or for publicreligious purpose provided such trust is deemed to be registeredor is registered under the Public Trusts Act. Only those Trustswhich were registered under the enactments specified inSchedule A and Schedule AA are to be deemed to have beenBregistered under the Public Trusts Act. There is no otherprovision in the Public Trusts Act with regard to deemedregistration. If it were the intention of the legislature that all publictrusts should be deemed to have been registered under the StatePublic Trusts Act, the legislature would have made an expressCprovision to that effect. It is not for the Court to read into statutewords and/or expressions which are not there in the statute. [Para40, 42, 43] [403-C-D; 404-C-E]

1.7 The Trust, being a public trust, has rightly beenregistered on 8.8.1984, after due enquiry. The registration of theDTrust under the Public Trusts Act cannot be questioned. However,the registration is prospective, w.e.f. 8.8.1984. The respondentsbecame deemed purchasers on Tillers’ Day, that is, 1.4.1957.The right under Section 32 of the 1948 Act accrued to therespondents on that day. The respondents cannot be divested ofsuch right upon subsequent registration of the Trust. It may beEtrue that a Trust for a religious purpose has the right to own andacquire property. However, such property may be taken away byauthority of law. The validity of Section 32 of the Public TrustsAct is not in question. The judgment and order passed by theHigh Court is upheld [Para 47, 48] [405-D-E]F

Laxminarayan Temple v. L. M. ChandoreAIR 1970 Bom23 ; Chhatrapati Charitable Devasthan Trust v. ParisaAppa Bhoske and others1979 Mh.L.J. 163 ;Gopal L.Raheja v. Vijay B. Raheja 2007 (4) Bom CR 288– referred to.

GMahant Ramswarup Guru Chhote Balakdas v. MotiramKhandu Patil and OthersAIR 1968 SC 422 : [1968]SCR 641 – distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2607of 2013.

From the Judgment and Order dated 06.02.2006 of the High Courtof Judicature of Bombay in Writ Petition No. 1442 of 1987.

Ms. Bina Madhvan, S. Udaya Kumar Sagar, Ms. Swati Bhardwaj,Ms. Shreyasi Kunwar, Ms. Elizabeth Anthony, M/s. Lawyer S Knit &Co, Advs. for the Appellants.

Ravindra Keshavrao Adsure, Sagar N.Patil, Advs. for theRespondents.

The Judgment of the Court was delivered by INDIRA BANERJEE, J.

1. This appeal is against a final judgment and order dated 6[th]February, 2006, whereby a Division Bench of Bombay High Court allowedWrit Petition No.1442 of 1987 filed by the Respondent Nos.1,2 and 3,and directed the concerned authorities to hold proceedings under Section32(G) of the Bombay Tenancy and Agricultural Lands Act, 1948[hereinafter referred to as “the 1948 Act” to fix the purchase price of 6acres and 19 gunthas of lands at Pimpli Village in the Baramati Taluk inPune district, hereinafter referred to as the “said land”.

2. The appellants are the trustees of Shree Maruti Deo TrustPimpli Limtek, registered as a public trust under the Bombay PublicTrusts Act, 1950, hereinafter referred to as the “Public Trusts Act”. Byamendment in 2012, the Public Trusts Act was renamed as “TheMaharashtra Public Trusts Act, 1950”. It is the case of the appellantsthat, since time immemorial, the said land has belonged to the MarutiDev Temple. The said land is classified in the revenue records as ClassIII Devasthan Inam land belonging to the deity Maruti Dev. The suitproperty, according to the appellants, belongs to an institution of publicreligious worship.

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3. There cannot be any dispute that the suit land belonged to theDevasthan. According to the appellants, initially in 1922, one SitramNarayan Deshpande was put in possession of the suit land in view of theservice rendered by him to the temple. Later, the land was let out to theforefathers of respondent nos. 1 to 4.

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B4. The respondent nos. 1 to 4, claim to be the tenants of therespondent nos. 5 and 6. The respondent nos. 1 to 4 claim to have beenin possession of the said land on 1.4.1957 i.e. the “Tillers Day” under the1948 Act, now known as the Maharashtra Tenancy and AgriculturalLands Act. The proforma respondents in this appeal, being the trusteesof the Trust, were deleted from the array of parties by an order of thisCCourt dated 13.2.2013.

5. The 1948 Act was amended by Bombay Act No. 15 of 1957,Bombay Act No. 38 of 1957 and Bombay Act No. 63 of 1958. Therelevant amended sections provide:

D“32. Tenants deemed to have purchased land on tillers’ day

(1) On the first day of April 1957 (hereinafter referred to as “thetillers day”) every tenant shall, [subject to the other provisions ofthis section and the provisions of] the next succeeding sections,be deemed to have purchased from his landlord, free of allEencumbrances subsisting thereon on the said day, the land held byhim as tenant, if:- (a) such tenant is a permanent tenant thereof and cultivates landpersonally; (b) such tenant is not a permanent tenant but cultivates land leasedFpersonally; and

(i) the landlord has not given notice of termination of his tenancyunder section 31; or

(ii) notice has been given under section 31, but the landlord hasnot applied to the Mamlatdar on or before the 31st day of MarchG1957 under section 29 for obtaining possession of the land; or

(iii) the landlord has not terminated his tenancy on any of thegrounds specified in section 14, or has so terminated the tenancybut has not applied to the Mamlatdar on or before the 31st day ofMarch, 1957 under section 29 for obtaining possession of the lands:

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32G. Tribunal to issue notices and determine price of land to bepaid by tenants. (1) As soon as may be after the tillers’ day theTribunal shall publish or cause to be published a public notice inthe prescribed form in each village within its jurisdiction callingupon:- (a) all tenants who under section 32 are deemed to havepurchased the lands, (b) all landlords of such lands, and

(c) all other possession interested therein, to appear it on the date specified in the notice. The tribunal shallissue a notice individually to each such tenant, landlord and also,as far as practicable, other persons calling upon each other toappear before it on the date specified in the public notice.

(2) The Tribunal shall record in the prescribed manner thestatementof the tenant whether he is or is not willing to purchasethe landheld by him as tenant

(3) Where any tenant fails to appear or makes a statement thathe is not willing to purchase the land, the Tribunal shall by anorder in writing declare that such tenant is not willing to purchasethe land and that the purchase is ineffective:

Provided that, if such order is passed in default of the appearanceof any party, the Tribunal shall communicate such order to theparties and any party on whose default the order was passed maywithin 60 days from the date on which the order wascommunicated to him apply for the review of the same.

(4) If a tenant is willing to purchase, the Tribunal shall, aftergiving an opportunity to the tenant and the landlord and all otherpersons interested in such land to be heard and after holding aninquiry, determine the purchase price of such land in accordancewith the provisions of section 32H and of sub-section (3) of section63A:

Provided that, where the purchase price in accordance with theprovisions of section 32H is mutually agreed upon by the landlordand the tenant, the Tribunal after satisfying itself in such manneras may be prescribed that the tenants consent to the agreement is A

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Avoluntary may make an order determining the purchase price andproviding for its payment in accordance with such agreement.

(5) In the case of a tenant who is deemed to have purchased theland on the postponed date the Tribunal shall, as soon as may be,after such date determine the price of the land”.

B6. It is the case of the appellants, that Section 88B, inserted byamendment in the 1948 Act by Bombay Act No.38 of 1957, exemptsland which is the property of a trust for, inter alia, educational purposesor an institution for public religious worship, from certain provisions ofthe 1948 Act including Section 32 and sub-Sections 32A to 32 R of theCsaid Act, provided that such trust is or is deemed to be registered underthe Public Trusts Act, and the entire income of such lands is appropriatedfor the purposes of such Trust.

7. The appellants contend that Section 32 has no application toland held by a Public Trust. Therefore, a tenant on land held by a PublicDTrust does not become purchaser either on “Tillers day” or on anysubsequent date. Counsel appearing on behalf of the appellants hasemphatically argued that the Maruti Dev Temple Devasthan has, allalong been a Public Trust.

8. On 18.9.1983, the Gram Sabha decided to get the TrustEregistered as a Public Trust. Accordingly, an application no. 1484/83was filed before the Deputy Charity Commissioner by one of the trustees,for registration of Shri Maruti Dev Trust, Pimpli, Limtek, under Section19 of the Public Trusts Act. On 8.8.1984, the Trust came to be registeredunder PTR No. A/1656 (Pune) after necessary enquiry.

F9. Questioning the registration of the Trust, the respondent no.1,father of the respondent nos. 2 to 4, filed a Revisional Application No.21 of 1985 before the Joint Charity Commissioner, Pune, who remandedthe matter back to the Deputy Charity Commissioner, on the ground thatno personal notice had been given to the concerned respondents.

10. On or about 9.7.1986, after registration of the Trust, the TrusteeGin Charge of the Trust, filed an application under Rule 52(1) of the BombayTenancy and Agriculture Land Rules, 1956 before the Collector forexemption of the said land under Section 88B of the 1948 Act. It appearsthat the Pune Archives recorded the land in question as Class IIIDevasthan Inam Land of the Village Pimpli, belonging to the MarutiH

Dev Trust, managed by Shri Narayan Deshpande, as per decision no.196 dated 3.7.1858.

11. The Additional Collector, after holding enquiry under Section88B (2) of the 1948 Act, issued a certificate dated 21.1.1987, certifyingthat the Trust is “an institution of public religious worship registered underthe Bombay Public Trust Act”. The certificate further certified that theTrust was eligible for exemption under Section 88B of the 1948 Act inrespect of the land in question. The appellants assert that the certificatewas issued after notice of inquiry to the respondents who were giventhe opportunity of cross-examining the Trustees.

12. On or about 13.3.1987, the respondent no.1 and father ofrespondent nos. 2 to 4, filed the above-mentioned writ petition beingWP No. 1442 of 1987 in the Bombay High Court, challenging the validityof the exemption certificate.

13. Sometime in 1997, the respondent no.2 filed an InquiryApplication No. 2008 of 1997 for registration of a Trust consisting ofnew Trustees in the name of Shri Maruti Dev Trust.

14. The appellants contend that the Inquiry Application wasmisconceived and not maintainable since the respondent nos. 1 to 4,who claim to be the tenants in the suit property, could not seek registrationof the Trust, as such a claim would be contrary to and inconsistent withtheir earlier claim of tenancy.

15. The Deputy Charity Commissioner, after considering theallegations and counter allegations of the respective parties in the InquiryApplication No. 1484 of 1983 and 2008 of 1997, passed an order dated15.9.2001 holding that Maruti Dev Trust was already in existence and itwas a Public Trust under the Public Trusts Act. Accordingly, Applicationno. 2008 of 1997, filed by the respondent was rejected. The ApplicationNo. 1484/1983 stood allowed.

16. Aggrieved by the order dated 15.9.2001, the respondent no.1, father of respondent nos. 2 to 4, filed an Appeal No. 101/2001 beforethe Joint Charity Commissioner, Pune. The appeal was dismissed bythe Joint Charity Commissioner by an order dated 5.7.2005, holding thatthe claim of the respondent to be the owner of the Trust property wasadverse to the interest of the Trust. The existing Trustees were directedto take necessary steps for getting a scheme framed by the CompetentAuthority for proper administration of the Trust.

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A17. By the Judgment and order dated 6.2.2006 under appeal, theDivision Bench of the Bombay High Court allowed writ Petition, beingW.P. No. 1442 of 1987 filed by the respondent no.1, father of therespondent Nos. 2 to 4, challenging the validity of the ExemptionCertificate dated 21.1.1987 issued by the Collector, and quashed theimpugned Exemption Certificate. The High Court held that it was notBopen to the Collector to grant a certificate of Exemption to the Trust asthe land had vested in the writ petitioners on 1.04.1957. The HighCourt directed the authorities concerned to hold proceedings underSection 32 G of the 1948 Act to fix the purchase price at an early date.

18. The short question in this appeal is, whether the High CourtCwas justified in quashing the Exemption Certificate issued by the Collectorin terms of Section 88B of the 1948 Act in favour of the Trust,notwithstanding the fact that the suit property belonged to “an institutionof public religious worship”.

19. The High Court has allowed the writ petition, on the groundDthat the Trust was registered for the first time on 8.8.1984. The HighCourt held that as the Trust was not registered on 1.04.1957, i.e., Tillers’Day the tenants who were in possession of the said land on that daybecame deemed purchasers, and once the tenant became a deemedpurchaser, the ownership of the land vested in him. The holders couldEnot be divested of their ownership by subsequent registration of the Trust.

20. In allowing the writ petition, the High Court has relied upontwo earlier decisions of the Bombay High Court, Laxminarayan Templevs. L.M. Chandore[1] and Chhatrapati Charitable Devasthan Trustvs. Parisa Appa Bhoske and others[2].F21.

21. The High Court found that the 1948 Act, as initially enacted,granted protection against eviction to tenants of agricultural lands. It didnot provide for any automatic purchase of the lands in occupation oftenants. Upon insertion of Section 32 to 32 R along with some otherSections by amendment of the 1948 Act by Bombay Act No.XIII ofG1957, subject to certain exceptions, tenants who remained in possessionon Tillers day i.e., 1.04.1957 became owners of the land in theirpossession.

1 AIR 1970 Bom 23

H2 1979 Mh.L.J.163

22. The relevant provisions of Section 88B inserted by amendmentof the 1948 Act in the same year, that is, 1957, is set out hereinbelow forconvenience:- “88B. Exemption from certain provisions to land of localauthorities, universities and trusts.-

(1) [(1) Nothing in foregoing provisions except sections 3, 4B, 8,9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of ChaptersVI and VIII in so far as the provisions of the said Chapters areapplicable to any of the matters referred to in the sectionsmentioned above shall apply, (a) to lands held or leased by a local authority, or Universityestablished by law in the [2] [Bombay area of the State ofMaharashtra]; and (b) to lands which are the property of a trust for an educationalpurpose, [3] [a hospital, Panjarapole, Gaushala] or an institutionfor public religious worship; Provided that,-

(i) such trust is or is deemed to be registered under the BombayPublic Trust Act, and

(ii) the entire income of such lands is appropriated for thepurposes of such trust;”

23. Section 88B provides for exemption of land being the propertyof a Trust, for inter alia public religious worship and/or educationaland/or social purpose from the vesting provisions. The High Court notedthat while the petitioners were tenants on Tillers day i.e. 1.04.1957, theTrust was registered for the first time on 8[th] August, 1984.

24. Relying on Laxminarayan Temple (supra) the High Courtheld that in order for the Trust to claim an exemption under Section 88Bof the 1948 Act, the Trust had to be registered before 1.04.1957, for ifthe trust was not registered on 1.04.1957, a tenant would become adeemed purchaser on that date and once the tenant became a deemedpurchaser the ownership of the land which vested in the tenant wouldnot be divested by subsequent registration of the Trust.

25. In Laxminarayan Temple (supra), a Division Bench of theBombay High Court held that the word “trust” in Clause B of Section A

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A88B(1) of the 1948 Act is not confined to a trust for an educationalpurpose but it covers trusts for other purposes mentioned in Clause (b)including a trust for an institution for public religious worship. However,a Trust is not entitled to the exemption till it fulfills two requirementsmentioned in the proviso, that is, (i) the trust must either be registered, or(ii) deemed to be registered under the Bombay Public Trusts Act.B

26. The High Court also relied upon Chhatrapati CharitableDevasthan Trust (supra). In the aforesaid case, a Bench of coordinatestrength of the same High Court held that even where an application forregistration of a Trust had been made before 1957, but the registrationhad not actually been effected before 1.04.1957, the tenant would becomeCthe deemed owner of the land and, therefore, a certificate under Section88B of the 1948 Act could not be granted, rejecting the argument thatregistration relates back to the date of the application.

27. The High Court rejected the submission that the decisions ofBombay High Court in Laxminarayan Temple (supra) andDChhatrapati Charitable Devasthan Trust (supra) requiredreconsideration and should therefore be referred to a larger Bench.

28. The Bombay Public Trusts Act was enacted to make provisionsfor the better administration of public religious and charitable trusts inthe State of Bombay. Before the Public Trusts Act was passed, publicEtrusts in the Bombay State were governed by various acts including theMussalman Wakf (Bombay Amendment) Act of 1935, the Parsi TrustsRegistration Act, 1936, the Religious Endowments Act, 1863 and theCharitable and Religious Trusts Act, 1920.

29. The Public Trusts Act, as stated in its preamble, was enactedFto regulate and to make better provisions for public trusts within theState of Bombay. Before the Public Trusts Act was enacted, numerous‘Mahants’, ‘Pujaris’, ‘Acharya’ etc. thrived and flourished on the incomeof temples and/or deities. Donations/offerings made by innumerabledevotees visiting the temples were seldom accounted for by theG‘Mahants’, ‘Pujaris’, etc. who exercised the rights of ownership overthe temples and/or their properties.

30. The Public Trusts Act, which, as stated hereinbefore, is intendedto regulate the administration of public religious and charitable trusts inthe erstwhile State of Bombay, now the States of Maharashtra and Gujarat,creates for the first time a unified special organization to deal with charityH

matters. Trusts, long in existence, came to be regulated by the PublicTrusts Act. The Mahants, pujaris etc. who administer properties of thedeity as trustees, were brought within the ambit of the Public Trusts Act.

31. Section 2 (13) of the Public Trusts Act defines a public trustas follows:- “2(13) “public trust” means an express or constructive trust foreither a public religious or charitable purpose or both and includesa temple, a math, a wakf, church, synagogue, agiary or other placeof public religious worship, a dharmada or any other religious orcharitable endowment and a society formed either for a religiousor charitable purpose or for both and registered under the SocietiesRegistration Act, 1860”

32. Counsel appearing on behalf of the appellant has very rightlyargued, that in view of the definition of ‘Public Trust’ in the Public TrustsAct, which also includes constructive trust either for a public religious orcharitable purpose, the absence of a deed of trust would not make anydifference to the position of the Trust as a “public trust”.

33. A constructive trust arises by operation of law, without regardto the intention of the parties to create a trust. It does not require a deedsignifying the institution of trust. Under a constructive trust, the trustarises by operation of law as from the date of the circumstances whichgive rise to it. The function of the court is only to declare that such atrust has arisen in the past.

34. Constructive trust can arise over a wide range of situations.To quote Cardozo, J., “ a constructive trust is a formula through whichthe conscience of equity finds expression.”

35. Story on Equity Jurisprudence has explained ‘ConstructiveTrust” as:- “One of the most common cases in which a Court of equity actsupon the ground of implied trusts in invitum, is where a party hasreceived money which he cannot conscientiously withhold fromanother party. It has been well remarked, that the receiving ofmoney which consistently with conscience cannot be retained is,in equity, sufficient to raise a trust in favour of the party for whomor on whose account it was received. This is the governing principlein all such cases. And therefore, whenever any controversy arises, A

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Athe true question is, not whether money has been received by aparty of which he could not have compelled the payment, butwhether he can now, with a safe conscience, ex aequo et bono,retain it. Illustrations of this doctrine are familiar in cases of moneypaid by accident, or mistake, or fraud. And the difference betweenthe payment of money under a mistake of fact, and a paymentBunder a mistake of law, in its operation upon the conscience of theparty, presents the equitable qualifications of the doctrine in astriking manner. It is true that Courts of Law now entertainjurisdiction in many cases of this sort where formerly the remedywas solely in Equity; as for example, in an action of assumptionCfor money had and received, where the money cannotconscientiously be withheld by the party; following out the rule ofthe Civil Law; Quod condition in debiti non datur uitra, quamlocupletior factus est, qui accepit. But this does not oust the generaljurisdiction of Courts of Equity over the subject-matter, whichhad for many ages before been in full exercise, although it rendersDa resort to them for relief less common, as well as less necessary,than it formerly was. Still, however, there are many cases of thissort where it is indispensable to resort to Courts of Equity foradequate relief and especially where the transactions arecomplicated, and a discovery from the defendant is requisite.”

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36. Section 90 of the Trusts Act states that if there is a person ina fiduciary relation to another, he cannot take advantage of that positionso as to gain something exclusively for himself, which he otherwise wouldnot have obtained, but for the position which he held.

37. Section 94 of the Indian Trusts Act, 1882 has allowed theFcreation of a constructive trust when situations went beyond the confinesof the Act. Section 94 has later been repealed by the Benami TransactionsProhibitions Act, 1988. Section 94 of the Trusts Act read :- “94. Constructive trusts in case not expressly provided for- GIn any case not coming within the scope of any of the precedingsections, where there is no trust, but the person having possessionof property has not the whole beneficial interest therein, he musthold the property for the benefit of the persons having such interest,or the residue thereof (as the case may be), to the extent necessaryto satisfy their just demands.”

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38. In Gopal L. Raheja v. Vijay B. Raheja[3], the Bombay HighCourt restrained itself from exercising its equitable jurisdiction to applythe English doctrine of constructive trust when the legislature hadspecifically deleted it from the Indian Trusts Act.

39. In our view, the repeal of Section 94 of the Act does not putany fetter in declaring a trust, even if the situation falls outside the purviewof the Act. Its jurisdiction can be derived from Section 151 of CPC andSection 88 of the Indian Trusts Act.

40. There can be no doubt that the Trust was all along a publictrust within the meaning of Section 2(13) of the Bombay Public TrustsAct. The Trust has rightly been registered under the Public Trusts Act,after due enquiry. However, all public trusts are not entitled, as of right,to the exemption under Section 88B of the 1948 Act. The said sectiononly applies to lands which are property of a trust inter alia foreducational purpose or for public religious purpose provided such trust isdeemed to be registered or is registered under the Public Trusts Act.

41. Learned counsel appearing on behalf of the appellantemphatically argued that the trust being a ‘public trust’ within the meaningof the Public Trusts Act, the Trust is deemed to have been registered asand when the Public Trusts Act came into force, long before Tillers Day,i.e., 1.4.1957. The Public Trusts Act recognizes even constructive trusts.

42. The expression “deemed to have been registered” is neitherdefined in the Public Trusts Act nor defined in the Indian Trusts Act,1882. Section 28 of the Public Trusts Act provides:

“28. Public trust previously registered under the enactmentspecified in Schedule

(1) All public trusts registered under the provisions of any of theenactments specified in Schedule A and Schedule AA shall bedeemed to have been registered under this Act from the date onwhich this Act may be applied to them. The Deputy or AssistantCharity Commissioner of the region or sub-region within the limitsof which a public trust had been registered under any of the saidenactments shall issue notice to the trustee of such trust for thepurpose of recording entries relating to such trust in the registerkept under section 17 and shall after hearing the trustee and making A

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Asuch inquiry, as may be prescribed, record findings with the reasontherefor. Such findings shall be in accordance with the entries inthe registers already made under the said enactment subject tosuch changes as may be necessary or expedient.

(2) Any person aggrieved by any of the findings recorded underBsub-section (1) may appeal to the Charity Commissioner.(3) The provisions of this Chapter shall, so far as may be, apply tothe making of entries in the register kept under section 17 and theentries so made shall be final and conclusive.”

Only those Trusts which were registered under the enactmentsCspecified in Schedule A and Schedule AA are to be deemed to havebeen registered under the Public Trusts Act. There is no other provisionin the Public Trusts Act with regard to deemed registration.

43. The legislature has, in its wisdom, very consciously providedthat all public trusts registered under the provisions of the enactmentsDspecified in Schedule ‘A’ & ‘AA’ to the Public Trusts Act shall be deemedto have been registered under the Public Trusts Act. If it were theintention of the legislature that all public trusts should be deemed to havebeen registered under the State Public Trusts Act, the legislature wouldhave made an express provision to that effect. It is not for the Court toEread into statute words and/or expressions which are not there in thestatute.

44. The judgment of this Court in Mahant Ramswarup GuruChhote Balakdas vs. Motiram Khandu Patil and Others[4], cited onbehalf of the respondents is clearly distinguishable since this CourtFconsidered the expression “deemed to be registered” in Section 28 ofthe State Public Trusts Act in the context of a trust situate in Burhanpur,Madhya Pradesh, outside the State of Maharashtra.

45. This Court, in effect and substance, said that the re-organizationof States in 1956 and 1960, consequential to which new areas whichoriginally formed part of the Madhya Pradesh State became part of theGMaharashtra State, necessitated amendments in the Bombay Trusts Actto incorporate Schedule AA, which, read with Section 28, inter alia,provided that trusts registered under the Madhya Pradesh Trusts Act,1951 would be deemed to have been registered under the Public Trusts Act. This was to save trusts already registered under the MadhyaPradesh Trusts Act, 1951, in areas which later became part ofMaharashtra, from the trouble of having to once again get itself registeredunder the Bombay Act.

46. This Court found that where the trust was administered outsidethe State of Maharashtra, with bulk of its properties except a few plotsof land situate outside Maharashtra, such trusts would not be governedby the Public Trusts Act of the State of Maharashtra and would not,therefore, fall within the ambit of Section 28 of the said Act. Thus, suchtrusts, though registered under the Madhya Pradesh Public Trusts Act,1951, would not be deemed to have been registered under the BombayAct.

47. As observed above, the Trust, being a public trust, has rightlybeen registered on 8.8.1984, after due enquiry. The registration of theTrust under the Public Trusts Act cannot be questioned. However, theregistration is prospective, w.e.f. 8.8.1984. The respondents becamedeemed purchasers on Tillers’ Day, that is, 1.4.1957. The right underSection 32 of the 1948 Act accrued to the respondents on that day. Therespondents cannot be divested of such right upon subsequent registrationof the Trust. It may be true that a Trust for a religious purpose has theright to own and acquire property. However, such property may be takenaway by authority of law. The validity of Section 32 of the Public TrustsAct is not in question.

48. Accordingly, the judgment and order passed by the High Courtis affirmed and the appeal is dismissed without any order as to costs.

Nidhi Jain

Appeal dismissed.

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