CIVIL

KESA AND OTHERS Vs. KALU AND OTHERS

Public Trust – Section 32 of the Madhya Pradesh Public Trusts Act provides that no suit to enforce a right on behalf of a public Trust which has not been registered under the Act shall be heard or decided by any Court. This section does not prohibit any suit being filed against the public Trust. If this is so, it must be held that if any decree is passed against the public Trust, it will have a right to challenge the same in appeal and that would not be treated as any attempt to enforce a right on behalf of the public Trust.

MADHYA PRADESH HIGH COURT

SINGLE BENCH

( Before : R.J. Bhave, J )

KESA AND OTHERS — Appellant

Vs.

KALU AND OTHERS — Respondent

C. Revision No. 501 of 1970

Decided on : 12-12-1972

Madhya Pradesh Public Trust Act, 1951 – Section 32
Partnership Act, 1932 – Section 69

ORDER

R.J. Bhave, J.—The non-applicants had filed a suit for declaration of title and possession of some land adjacent to the temple of Lord Krishna belonging to Balai Community. The applicants, who were defendants in the case, were said to be trespassers on the land. The defence was that the land belonged to one Pura s/o Kanji who had dedicated it to the deity of Lord Krishna op 4-3-1956. Other defences were also raised. The trial Court however, decreed the suit in favour of the third non-applicant. The applicants, therefor, filed an appeal before the Additional District Judge, Mandsaur. During the pendency of the appeal, the non-applicants filed an application for staying the hearing of the appeal on the ground that the so called public Trust i.e. Lord Krishna Trust, was not registered under the Madhya Pradesh Public Trusts Act, 1951. The applicants opposed the application, the lower appellate Court stayed the hearing of the appeal and at the same time vacated the stay order passed by it at an earlier stage. Aggrieved by the said order, the applicants have preferred this revision.

2. Section 32 of the Madhya Pradesh Public Trusts Act provides that no suit to enforce a right on behalf of a public Trust which has not been registered under the Act shall be heard or decided by any Court. This section does not prohibit any suit being filed against the public Trust. If this is so, it must be held that if any decree is passed against the public Trust, it will have a right to challenge the same in appeal and that would not be treated as any attempt to enforce a right on behalf of the public Trust. There is, therefore, no question of the appeal being stayed till the public Trust is registered under the Madhya Pradesh Public Trusts Act. If the the right to appeal is denied to the public Trust, which is made the defendant, it would create a very anomalous situation. All sorts of unwarranted decrees would be obtained against the public Trust and it would be denied the right to challenge the validity of the decrees only for the reason that the Trust was not registered. Apart from this I do not find any justification for vacating the stay order already named by the lower appellate Court. If the hearing of the appeal was to be stayed, it was also necessary that the execution of the decree should be stayed. It is no doubt true that in Jawaharlal Chunnilal Vs. Ramkrishna Malik alias Jafarmal, Tare, J. (as he then was) held that an appeal being a continuation of the suit would be required to be stayed till the Trust was got registered. But in that case the suit was filed by the public Trust to enforce its rights. Then the appeal was preferred, the Madhya Pradesh Public Trusts Act came into force and it was prayed that the appeal should be pt pending till the Trust was got registered and his Lordships, acting on the principle that the appeal is the continuation of the suit, ruled that the appeal would have to be kept pending. But in that case as already stated, the appellant, i.e., the public Trust was trying to enforce its rights which were not recognised by the trial Court. The public trust, in that case, was not appearing as a defendant and it was not a defendant’s appeal. In this connection, reference may be made to a decision of the Madras High Court in Sundaram Chettiar v. Ittimathu and Bros. AIR 1945 Mad 69 where a suit was filed against certain persons who were members of an unregistered firm. They had challenged the decree by way of an appeal. An objection was raised that the appeal would not he, as the partnership was not registered. It was held by the Madras High Court that there was no prohibition on a suit being filed against the unregistered partnership and hence if a decree was passed against it, it had every right to challenge it by way of an appeal. The provisions of section 32 of the Madhya Pradesh Public Trusts Act and section 69 of the Indian Partnership Act are similar. The same reasoning should apply in this case also.

3. In the result, the revision is allowed. The order of the Lower appellate Court vacating the stay order is set aside.

4. Inasmuch as it was stated that an application was already made for getting the Trust registered, I do not set aside the order of staying the appeal till the registration is secured, through, in my opinion, that order is also liable to be set aside.

5. In the circumstances of the case, I do not make any order as to costs.


(1973) JabLJ 918